Derek: Hi, everyone, Derek Johnson with tatango.com.
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 tatango.com.
I’m here at Innovista Law, the home of the TCPA Defense Force, and I’m speaking to
Attorney David Calgary.
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