TCPA Definition: Automatic Telephone Dialing System (ATDS)

Derek: Hi, everyone, Derek Johnson with I’m here at Innovista Law, the home of the
TCPA Defense Force. I’m sitting with David Calgary, TCPA attorney. We’re talking about, in the Telephone Consumer
Protection Act, the TCPA, it says, “Automatic Telephone Dialing System,” and I need to
know what the heck does that mean? David: Well, you’re right. So, the Congress, when they adopted the TCPA
1991, specifically talks about what they referred to as an Automatic Telephone Dialing System. Derek: It’s a mouthful. David: Yes. And so, we usually shorthand refer to it as
an ATDS. Derek: ATDS, okay. David: ATDS, you’ll hear that terminology
quite a bit. And that’s…you know, it’s the question
of whether or not when you’re robocalling, text messaging people, whether it’s done
really by the computer. The dialing of the phone number, is it done
by a computer or is it done by a human? And so, as technology, you know, in 1991,
Congress was looking at the TCPA, the concern there was people getting these calls at home,
on their residential phone lines, during dinner, and it was disrupting people. People were complaining to Congress. And so, Congress was looking at, “Well,
how can we put some rules around this telemarketing process in order to help consumers protect
their privacy and avoid having constant disruptions?” Derek: Okay, especially at dinner. David: Especially at dinner, that was the
big thing that you hear about. And so, they adopted the Telephone Consumer
Protection Act, which includes a number of different things. It includes what’s called the “Do not
call us,” where people can say, “Just don’t telemarket me.” Derek: Ever, yeah. David: And then, it also includes requirements
around getting consent, certain levels of consent if you’re gonna use an Automatic
Telephone Dialing System to call people even on their residential lines or on their mobile
phones or cell phones. Derek: Okay. Because originally, in 1991, it was…was
it just phone calling or was it fax? David: Sure, faxing. And actually, faxing is a major issue. Derek: Okay, still part of it, okay. David: There’s actually a remarkable amount
of litigation still, today, about faxes. Derek: Wow, I haven’t received a fax in
years. David: And so, it does, it covers all those. It covers residential phones, mobile phones,
pagers, which also you probably don’t get a lot of pages these days. Derek: I’ve never used one of those, no. David: So, it covered all of those technologies
as they existed at the time. Derek: And, that’s why it’s called, Automatic
Telephone Dialing System because it really was about older technology and then, text
messaging came. Now, in the original TCPA, it didn’t say
text messaging. David: Right. Derek: Okay, that came later. David: Correct. And so, after Congress adopted the FCC, the
Federal Communications Commission, has been the agency that’s in charge with interpreting
and enforcing the statute. And so, over time, the FCC has made a couple
of major changes, one of which is to declare that text messaging is, in fact, a call, a
phone call, as Congress intended when they adopted the TCPA. So, even though text messages didn’t exist,
the FCC has said, “Well, had they existed, Congress would have considered them a phone
call, so therefore we’re gonna extend the TCPA to text messaging.” Derek: So, let’s be very clear because I
know there’s a lot of confusion here. David: Sure. Derek: In the original TCPA, it says Automatic
Telephone Dialing System, that black and white now means that includes text messaging, faxes,
pagers, phone calls. There’s no if, ands, or buts about it. It’s in there. David: It’s in there. It’s in there. And, you know, that requirement or the extension
to messaging has been around for many years now. The FCC has re-affirmed that on multiple occasions. Several courts have looked at it. It’s very unlikely that it’s going anywhere. It’s there. Derek: That’s good to know. I like black and white things. It’s easy to understand. David: There’s very few things that are
in black and white in law, but that is pretty much one of those. You’re not gonna see that disappear. So, it extends there. And then, the other thing, though, that the
FCC has also looked at it and sort of extended, you would say, is what is the definition or
what fits into the definition of the Automatic Telephone Dialing System, the ATDS? So, in 2015, the FCC released an order, where
they took with them a lot of issues about the TCPA, one of which was how broad is this
definition of Automatic Telephone Dialing System. And there, they said that it really is any
device that has the capacity to dial a telephone number automatically. And that means, not that it is set up to actually
do it, but that it could be… Derek: Could do it. David: …could do it. That it’s theoretically possible. Derek: This sounds more of a gray area rather
than black and white. David: And so, it’s a bit of a gray area,
except if you look at it from a perspective of, you know, the safer course of action is
to essentially believe that almost any device that dials multiple phone numbers or reach
consumers, any device that a company would be using to send text messages. You know, the safest course of action is to
look at it as if it’s going to be considered an Automatic Telephone Dialing System, and
then to build your programs from that point. Derek: Based off that. David: Because, while, if you end up in litigation,
you may want to try to have arguments or create arguments about why it’s not an Automatic
Telephone Dialing System. From many perspectives, it’s just safer
to not end up in the litigation, right? Derek: Because you are already in litigation
and it’s causing you a bunch of money, time, effort. David: It’s gonna cost a lot of money. And so, go ahead and get those heightened
levels of consent and treat your program, your text messaging program, as if it’s
an ATDS, it’s probably a safe course of action. Derek: Your calling program to your faxing
program, every program, make sure you’re treating it as…whatever device you’re
using, whatever system, software, treat it as an ATDS, so that you’re just at the highest,
you know, consent levels. David: That’s, you know, that is certainly,
I think, a safe and prudent course of action, given the FCC’s expansive definition of
2015. There’s a dissent to that opinion that the
FCC released that basically concluded, the only thing that you can be confident is not
an Automatic Telephone Dialing System is a rotary dial telephone. Derek: Oh, because it cannot, at any point,
any time, unless modified, I guess, be an Automatic Telephone Dialing System. David: Correct. But anything beyond that, up to and including,
you know, some people speculate that your cell phone, your iPhone, could possibly fit
into the definition. And, you know, that’s potentially an extreme. But, what happens is, these are the areas
in which plaintiffs like to bring cases, right? They like to test these boundaries. And, then you…so you don’t want to be
the company that’s spending… Derek: That tests the boundaries. David: …a lot of time and money in litigation,
having a fight about whether that’s an ATDS or not an ATDS. Because, so often, that’s gonna be at best
an issue that goes all the way to jury for trial, that you’re probably unlikely to
get accord to resolve on, like, early in the case because it will become potentially very
facts intensive and facts specific. And so, those are the types of fights, as
lawyers, we lead to very expensive, long drawn out litigation, and we try to help our clients
to sort of think about it from that perspective of like, “Do I really want to be the test
case?” Derek: Okay. So, the law is ever evolving, right? David: Yeah, absolutely. Derek: So, you went from text messaging…or
sorry, you went from phone calls to text messaging, it might go to something new that we don’t
even know about. So it seems like the best course of action,
because the law is ever evolving, is to involve, you know, an attorney or somebody, not even
an attorney, somebody that knows and follows the TCPA, and that’s kind of your specialty. David: Yeah, I think that that’s right. You have… It is constantly evolving. You have the FCC, which has used decisions,
the 2015 decision that I mentioned earlier, that talks about how broad an Automatic Telephone
Dialing System is. That decision is still pending on an appeal
of the DC circuit right now. And literally, any day, we could have a decision
on that, and that would change what the FCC said. So, you know, we…I’m sure you guys do
at Tatango, we monitor the developments of the FCC. We monitor the developments at the courts
because you might have different courts reaching different interpretations on issues, and so
you need to understand, like, if you’re developing a national text messaging campaign,
in many ways, you need to go with the most conservative approach. Derek: Oh, so you’re saying if different
almost laws and interpretations, depending on where the text messages are sent throughout
the United States? David: Sure. If you end up in litigation around a particular
issue, you know, you might have president [SP] in California, in the 9th circuit, that’s
a different interpretation in the 2nd circuit in New York, right? And so, if you’re someone that…like we
monitor and look at pretty much all of the decisions that come out around the TCPA so
we can look for and identify what are the trends, where are the certain issues being
decided in different ways to really help clients then take the most defensible position. Because unfortunately, you’re talking about
a national brand, right, and they’re involved in sending messages to consumers all across
the country. They don’t usually get to pick the place
in which they’re gonna get sued. Derek: Okay, because there consumers all over
receiving text messages, so it’s whatever consumer feels they’ve been wronged and
where they’re located. David: Correct, and that might be. Now, you might have somebody in your terms
of service that helps that kind of say, you know, “You need to come here,” or things. But, you have to, in general, be thinking
about what’s the landscape look across the country? How are different courts looking at issues
differently? And then, try to plan out a strategy that
helps to protect you, regardless of those things, right? And so, it’s really, as you say, constantly
evolving, that’s the best way to think about it. Derek: Yup. And getting a TCPA firm like yours or an expert,
you know, that knows the law. Because even at Tatango, we’re software
experts. We know what works and what doesn’t in terms
of, you know, opt-ins, opt-outs, and what works from a customer perspective or return
on investment. But, as you said, we can’t monitor the TCPA
like you guys do, you know, across the entire United States, all the different court cases. It really takes a specialist, it feels like. David: And I think it takes really both sides
of that equation, right? I think that lawyers, we’re really good
at cases, we’re really good at looking at what the FCC is saying, but we don’t always
have a handle on as what’s happening in the field, right, how are things evolving
in the field, how are people adapting and changing? And so, to me, it takes a good combination
of those two to help a new company or new brand to sort of navigate the landscape. It’s totally doable. And I think that’s the other message, is
that, you know, we don’t wanna just have people concerned about the complexity, but
I think that the message is complex but doable if you work with people that really understand
the issue. Where I find, unfortunately, people getting
in trouble is they rely on a generalist, someone that maybe does their contracts, and then
they’re gonna ask them. A generalist may be aware that the TCPA exists
but may not have peeled back all the layers and understood the complexity and really be
up-to-date. Derek: Or even worse, they rely on not an
attorney, they rely on their marketing team, or maybe the software provider, and that’s
definitely not something. I agree, the combination of everybody, because
the attorneys will tell you what needs to be included in the opt-in, companies like
Tatango, will say, “Okay, well, we have 160 characters, how do we fit that in?” So, you know, it’s a back and forth, I think,
rather than just, like, one party is saying, “Okay, this is it and this is how it needs
to be done.” David: Yeah. And really that sort of, like, here’s a
tried and true method of ways in which people have addressed this specific requirement. And then, the lawyers are gonna look at that
and say, “That meets the legal requirements. That’s got all of the right ingredients.” So then, you know that you’re kind of safe
ground there. Derek: So, definitely a team effort, it seems
like. David: Yeah. Derek: Awesome. Okay, so that answers the question of what
is an Automatic Telephone Dialing System, and I think, we’ve resolved for, at least
for now, that it includes text messaging in that. David: Absolutely. Derek: My name is Derek Johnson with I’m here at Innovista Law, the home of the
TCPA Defense Force, and I’m speaking to Attorney David Calgary. Thanks for watching our video today. If you liked this video, be sure to give us
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