We have blogged several times before about the Telephone Consumer Protection Act (TCPA) and what is an “autodialer” under the rules and on April 1, 2021 the Supreme Court provided some clarity. As background, in 2015, the Federal Communications Commission (FCC) issued a TCPA Order that, in part, broadly defined what technology might constitute an “autodialer.” This is important because calls and texts made to a cell phone using an autodialer would fall within the scope of the requirement to receive either prior express consent or prior express written consent to call or text a consumer. Under this past Order, even a system with the “potential” to make autodialed calls seemed to potentially fall within the rule’s consent requirements. NAFCU members can find more background on this here.
Multiple groups challenged the FCC’s 2015 Order in federal court, including NAFCU and in March 2018 a federal appeals court struck down much of the 2015 Order in the ACA International v. FCC case, including rejecting the broad interpretation of “autodialer” (more details in this NAFCU Compliance Blog post and NAFCU Compliance Monitor article). This left courts applying the TCPA’s statutory definition of an autodialer to determine which technology may or may not be an autodialer for the purposes of the TCPA, often with different results across jurisdictions. Here is that definition for reference:
“…equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.”
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