November 15, 2018 Practice Points

The Evolving Definition of an Auto-Dialer under the TCPA: How Did We Get Here?

Trade groups, members of Congress, and other interested parties now wait eagerly for the FCC to (hopefully) bring some needed clarity.

By Mark E. Rooney

The definition of an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA) is the subject of increasing scrutiny. (For the complete statutory definition, see 47 U.S.C. § 227(a)(1).) Recent court decisions have split on key interpretive issues, prompting the FCC to extend a public-comment deadline as it considers re-writing TCPA rules.

How did we get here? First, in its 2015 declaratory ruling and order, the Federal Communications Commission (FCC) determined that the statutory reference to dialing equipment’s “capacity” should not be limited to the equipment’s “present capacity” but instead should be viewed as a function of the equipment’s “potential functionalities.” Next, when industry participants challenged the order, the D.C. Circuit Court of Appeals struck down the FCC’s broad definition of an ATDS, calling it “expansive” and “untenable.” Then, the Ninth Circuit in Marks v. Crunch San Diego, LLC, found that the D.C. Circuit decision abrogated all prior FCC guidance and left “only the statutory definition” of an ATDS to consider. The Marks court held that the ability to communicate automatically from a stored list of numbers, even without employing a random or sequential number generator (as required by statutory language), may trigger TCPA liability. Other circuit- and district-court rulings have split further on how to interpret the ATDS definition.

Trade groups, members of Congress, and other interested parties now wait eagerly for the FCC to (hopefully) bring some needed clarity. The evolving definition of an ATDS under the TCPA is the subject of an upcoming Roundtable. To join, please register here.

Mark E. Rooney is the principal and founder of The Rooney Firm PLLC in Washington, D.C., and is a cochair of the Consumer Litigation Committee’s Subcommittee on TCPA and FDCPA Litigation.


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