For a while we have been advising financial institutions to take a very, very cautious approach with the TCPA, especially in regard to the definition of an Autodialer. But, with the current makeup of the FCC and a recent court decision, perhaps you can reign in that definition a little bit.
In 2015, the FCC took a very broad approach to the definition of an Automatic Telephone Dialing System (Autodialer). An Autodialer is any equipment that has the capacity to store or produce numbers to be called using a sequential or random number generator and to dial those numbers. The 2015 Order looked at “capacity” and determined that the fact that the equipment, in its present configuration or as used to make the call, does not produce or store numbers or dial those numbers does not preclude it from being an automatic telephone dialing system so long as it has the capacity. The TCPA’s use of “capacity” did not exempt equipment that lacks the present ability to store or generate numbers or to dial randomly or sequentially. The definition of an Autodialer is very broad and includes equipment that has the potential ability to store or generate and to dial telephone numbers. This potential ability standard could have potentially swept all smartphones into the definition because they have the capacity to store telephone numbers and to automatically dial those numbers through the use of an app or other software. Basically, unless you were using a rotary phone to make calls, you could have been using an Autodialer. So, we took a very conservative approach and advised that you treat any call you make as being made with an Autodialer.
Back in March of 2018, the US Court of Appeals for the D.C. Circuit issued their decision in ACA International v. FCC setting aside the 2015 Order’s clarifications on the definition of an Autodialer. The Court stated that the FCC’s definition of an Autodialer included all smartphones. This definition is an unreasonably expansive interpretation of the TCPA and the statute cannot be read as to include all smartphones. The Court set aside the portions of the 2015 Order with regard to the definition of an Autodialer. The Court did not, however, further define an Autodialer and permitted the FCC to reconsider how to interpret the definition of an Autodialer. The FCC could, according to the Court, use exemptions to limit the breadth of the definition of an Autodialer.
In 2015, when the order was issued, the FCC consisted of three Democrat and two Republican Commissioners. Since then, there has been a massive turnover at the FCC with only two commissioners remaining. President Trump has been able to replace two other commissioners. As it sits now, the FCC consists of three Republican commissioners and one Democrat (though President Trump has nominated a second Democrat to bring the FCC back up to five commissioners). Ajit Pai, who was very critical of the expansive interpretation of the Autodialer interpretation, is now the Chairman. Pai has indicated that the FCC may consider a much less expansive definition. In May 2018, the FCC issued a public notice seeking comments on how to interpret “capacity” in light of the court’s decision. The comment date has past and we are now waiting on the FCC to issue an order clarifying what “capacity” means.
Until the FCC issues more guidance on exactly what “capacity” means, we still urge caution with the TCPA but you do not need to treat EVERY call as being made by an Autodialer. But, for example, you may still want to be cautious if your office telephone system is (or can be) connected with your computer network and you can place a call from your computer.