March 19, 2019 Articles

The Evolving Definition of an Auto-Dialer under the TCPA

The ACA International ruling and its aftermath raise more questions than answers.

By Mark E. Rooney

What is an “automatic telephone dialing system” (ATDS or auto-dialer)? The answer to this increasingly debated question has broad implications for consumers and American businesses.

The Telephone Consumer Protection Act (TCPA) prohibits, among other things, the use of an ATDS to contact consumers on their mobile phones, without their express consent. Companies who wrongly use an ATDS are subject to statutory fines of at least $500 for every call made or text sent to a consumer, and these penalties can be privately enforced through consumer litigation. In an age when businesses easily can (and regularly do) call and text their customers’ cell phones, TCPA litigation has expanded dramatically.

Recently, the Federal Communications Commission (FCC) and some courts have considered how the definition of auto-dialer applies to new communications technologies—and, therefore, whether companies using those technologies can be subject to TCPA liability.

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