I’ve heard there’s some confusion about an order the Federal Communications Commission (FCC) released concerning automatic dialers calling cell phones. What’s the issue?

3/12/2016
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Question
I’ve heard there’s some confusion about an order the Federal Communications Commission (FCC) released concerning automatic dialers calling cell phones. What’s the issue?

Answer
On July 10, 2015, the FCC issued a Declaratory Ruling and Order regarding the Telephone Consumer Protection Act of 1991 (TCPA) in response to 21 petitions for TCPA clarification.

While the order was intended to clarify several issues regarding the use of dialers, it has resulted in greater confusion for companies that sell and use dialing solutions. One area addressed in the order concerns the use of an automatic telephone dialing system (ATDS) to place calls to cell phones. An ATDS can be used to call a cell phone only if prior express consent to do so has been obtained from the appropriate party.

One concern about the ruling is the very unclear definition it provides for an ATDS. The Commission’s ruling states that “dialing equipment generally has the capacity to store or produce, and dial random or sequential numbers” and “the capacity to dial numbers without human intervention.” Here is the issue: the FCC states that capacity is not limited to current capacity, but can also mean future or potential capacity; and human intervention is not defined. The Commission’s definition of “capacity” is so broad that the FCC used a rotary phone as an example of what is not an ATDS. Mentioning antiquated phone technology is a major concern about this ruling, as it appears to imply that companies should go back to this technology if they want to comply with the TCPA, and it does not provide meaningful guidance concerning today’s technology. Although the ambiguity regarding what is or isn’t an ATDS under this “clarification” will have to be addressed by the Commission (or the courts), this ruling is in effect and requires serious consideration from dialing solution vendors and the customers who use their products.