Category - "Automatic Telephone Dialing System"

FCC Opportunities for TCPA Rule Revision or Interpretation

The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling.  Immediately upon the federal government’s reopening, two additional petitions were filed.  While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.

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California State Court Holds That Equipment That Lacks Present Capacity to Use Random or Sequential Number Generator Is Not an ATDS

A few weeks ago we wrote about Hunt v. 21st Mortgage Corp., 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013), in which the United States District Court for the Northern District of Alabama took a narrow view of what qualifies as an automatic telephone dialing system (“ATDS”) under the TCPA.  That definitional issue has been hotly contested because calls that do not use an ATDS do not need prior express consent.  (Our prior summary of the issues and the Hunt decision is available here.)

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Federal Court Takes Narrow View of What Constitutes an ATDS

The TCPA prohibits the use of an automatic telephone dialing system (“ATDS”) to place calls to wireless phones without the called party’s prior express consent.  Because calls placed without the use of an ATDS are not subject to the TCPA’s prior express consent requirements, what constitutes an ATDS has been a hotly contested issue.  This issue can be expected to take on even greater importance under the new FCC rules that take effect on October 16, because the “prior express consent” requirement will now require written consent.  Telemarketers, it can be expected, may explore ways to abandon the use of equipment that would fall within the definition of ATDS and to modify or replace that equipment with something that would not be an ATDS.

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