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In the video above, Tatango CEO Derek Johnson and TCPA attorney John Nelson explore how courts have dealt with the definition of “autodialer” in 2018. This is a complicated and important issue for any company in the SMS marketing world. If you prefer to read instead, see the summary below.
The Definition of “Autodialer” Is Up for Debate
An autodialer is a simple name for an automatic telephone dialing system (ATDS). The term comes from the Telephone Consumer Protection Act (TCPA), a set of laws governing text and telephone marketing. The TCPA requires marketers to obtain consent before sending consumers certain communications. In other words, consumers must opt in to receive calls or messages from marketers. A brand that violates TCPA requirements can face fines up to $1,500 per text and call. The language of the TCPA addresses the use of autodialing systems but fails to give a specific definition within the law. The Federal Communications Commission (FCC) is in charge of implementing TCPA rules, and they should be the ones to write and define the exact classification of an ATDS.
In 2015, the FCC announced a general definition of an autodialer quickly struck down by the D.C. Circuit Court as unreasonable. The court found the definition insufficient and turned the task back over to the FCC. The FCC now has to lay out a proper definition of what constitutes an autodialing system. Establishing a clear and specific definition is vital for the SMS marketing world. A vague definition creates uncertainty for marketers who can’t adequately plan for the future if they feel unsure about their understanding of the law. Until a clear legal meaning is established, individual courts and judges are free to interpret the term ATDS however they see fit.
ATDS Definition Disagreements
The FCC has asked for public feedback and comment, hoping to arrive at an ATDS definition that resolves the existing ambiguity. So far, judges and brands have disagreed about three main aspects of the definition, causing uncertainty for marketers.
- Should its current capacity for autodialing define an ATDS system, or should its possible capabilities, even in the future, be considered?
- If autodialing features are turned off, does an ATDS-capable machine still count as an autodialer?
- If a device can only message randomized or sequential phone numbers, is it an autodialer? What if the system is only used for curated lists of subscribers?
Judges have disagreed about these points, handing down decisions based on their understanding of TCPA rules. If two courts could deliver opposing rulings about the same devices, there’s a problem with the current system and definition. Defining an autodialer is delicate since it can impact many different businesses and industries. It’s up to the FCC as they move forward with public feedback. Even if the final definition is long and complicated, it’s necessary for the health of the telephone and SMS marketing industry as a whole.
Tatango Can Help You Meet TCPA Requirements
First and foremost, we recommend working with a reliable attorney well versed in TCPA guidelines. Check out tcpadefenseforce.com for more resources and a directory of TCPA defense attorneys.
Additionally, as an industry leader for more than 13 years, Tatango provides expert guidance, and our text message marketing platform includes tools to help you meet TCPA requirements. Contact us today to learn more.