On July 10, the Federal Communications Commission (“FCC”) released the text of a Declaratory Ruling and Order, initially adopted on June 18, that provides various clarifications regarding the Telephone Consumer Protection Act of 1991 (“TCPA”) and the FCC’s existing rules. The proceeding that led to the Order attracted widespread attention and was the result of nearly two dozen petitions filed by organizations representing healthcare, banking, retail, and telecommunications interests. The broad interest in this proceeding is the direct result of the sweeping impact that the TCPA has had on when and how businesses may contact consumers, as well as the multiplicity of consumer class actions threatened and filed against advertisers, debt collectors, and others making automated calls or sending automated text messages.

What is an “Automatic Telephone Dialing System” (ATDS)?

The first clarification made by the Order is with respect to “autodialers” (or, in the wording of the statute, an “automatic telephone dialing system”). The TCPA and the FCC’s existing rules prohibit making non-emergency calls to a wireless number without prior express consent when those calls are made using an autodialer or an artificial or prerecorded voice. Accordingly, there has been significant controversy over what kinds of dialing systems qualify as autodialers, which the TCPA defines as equipment that has the “capacity” to “store or produce telephone numbers to be called, using a random or sequential number generator,” and to “dial such numbers.” See, e.g., Satterfield v. Simon & Shuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (A “system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it” for the TCPA to apply.).[i]