What is an “autodialer?” If my brain tells my hand to dial a number and my hand responds “automatically” by doing so, is that an autodialer? For a plaintiff’s lawyer emboldened by the FCC’s July 10, 2015 TCPA order (FCC Order), to now argue as much is not all that far-fetched.

The TCPA actually does not refer to “autodialers.” Rather, it refers to automatic telephone dialing systems (ATDS), which often are referred to more loosely as autodialers. So what is an ATDS? One would think that the TCPA itself would be the best place to look for that definition, and there is indeed a definition in the statute: “[E]quipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential-number-generator; and (2) to dial such numbers.” 47 U.S.C. § 227(a)(1).

A straightforward reading of this definition conjures up an image of a machine or software program that has the present capacity to dial numbers either randomly or sequentially and whose capacity for that functionality is actually used as to the person or entity claiming a violation of the TCPA. The FCC, however, disagrees with that plain-text reading and, as such, has given plaintiffs’ lawyers much to celebrate. One of the things of greatest concern for corporate defendants and their counsel is that the ATDS prohibitions in the TCPA are not limited to telemarketing, so a wide range of corporate telephonic and/or text communications could run afoul of the ATDS restrictions.

Here is, in part, what the FCC said about ATDS and why the interpretations are so troubling for corporate defendants:

• “[D]ialing equipment generally has the capacity to store or produce, and dial random or sequential numbers (and thus meets the TCPA’s definition of ‘autodialer’) even if it is not presently used for that purpose. . . .” FCC Order at p. 12 (emphasis added). This language is tantamount to finding a photocopier necessarily an agent of copyright infringement, even if under the facts and circumstances of the relevant case, the photocopier was not used to engage in infringement. It had the capacity to facilitate infringement. Its use, therefore, standing alone implicated the user as an infringer! According to the FCC, “[i]n other words, the capacity of an autodialer is not limited to its current configuration but also includes potential functionalities.” at p. 14 (emphasis added). Thus, even if the system is not used as an ATDS and does not have the present capacity to autodial, it can still be deemed an ATDS if it could be modified to function as such. The FCC indicated there would be a limit to what it would construe to be an ATDS, but the FCC did not state that limit, meaning that the question of what is and is not an ATDS will continue to be litigated – at great risk to corporate defendants—for years to come.

• Although the FCC offered a ray of hope to corporate defendants by emphasizing that “human intervention” in the call process could render a system not an ATDS, at p. 15, the FCC declined to find broad immunity in cases involving human intervention or to define the sorts of human intervention that would immunize defendants from TCPA claims. Id. at pp. 15-17. Defendants, therefore, are left to speculate about what sort of human intervention might immunize them and to litigate the effectiveness of their strategies.

• The FCC found that, if different companies perform different roles in the call process, the combination of the companies’ systems could be construed as an ATDS. at p. 12. Accordingly, one company without an ATDS could be deemed liable for using an ATDS if the first company’s system, when combined with the second company’s non-ATDS system, could be construed, together, as an ATDS under the FCC’s vexingly vague interpretation of that term. This means more litigation, more money, more confusion and more work for lawyers.

While there is little good news for corporate defendants in the ATDS section of the FCC Order, all is not lost. Given the numerous ambiguities in the order, defense counsel still has the ability to argue that the issues discussed above have been left to judges to decide, depending on the unique facts and circumstances of each case. Additionally, there is still the opportunity to argue that the FCC exceeded its administrative authority in adopting these interpretations without a statutory basis to do so. At least two companies have sued in the D.C. Circuit Court of Appeals to challenge the FCC Order, and many, many more companies are likely to join in that effort.

Read Part One here:  FCC Hangs Up on Businesses Calling for Help