Derek: Hello everyone, Derek Johnson with tatango.com and we are answering questions
from the internet with an actual TCPA attorney, John Nelson.
One of the questions we just got is, "How have courts dealt with the definition of auto
dialer?"
So auto dialer, in 2018, and we're filming this in well, November I guess now.
John: Yeah and we've had a lot happen between March and November of 2018 on this issue.
And, again, this requires a little bit of back story to kinda get up to date.
So since really the beginning of the TCPA in 1991, the issue of auto dialer, automatic
telephone dialing system, and how that term should be defined, you know, has been a central
issue to the FCC and to courts across the nation.
And in 2015, the FCC, which governs the TCPA and kind of the nitty gritty of it, came out
with an interpretation of that term that was extremely broad.
Broadened to the point that actually in March of 2018, the D.C. Circuit Court of Appeals,
in a decision called ACA International, struck down that decision as unreasonable, that interpretation
of auto dialer, as unreasonable.
And essentially at that point, what happened was, "We don't think the definition the FCC
has given us is reasonable.
We don't believe that we are in a position to define that term for the FCC.
We are now putting it back on the FCC's plate and saying, 'you define it.'"
Now, since that happened, the FCC, obviously, it takes a lot of time to kind of get to the
finality of issues, hasn't interpreted this term.
Derek: They have not?
John: They have not.
Derek: Okay.
John: So it has been left to the individual courts across the United States to interpret
for themselves.
Derek: Until the FCC does it?
John: Correct.
Derek: Okay.
John: And essentially what we've gotten between March and, you know, as recently as yesterday
are interpretations of the auto dialer term.
Derek: Like different interpretations.
John: Different interpretations.
Derek: And these are the courts, like judges?
John: Correct.
Individual judges in federal courts across the country.
Derek: Because there is no standard thing the FCC has put out, it's their right to determine
it the way that they want.
John: It is their right and it is their duty, and they have been doing this and they have
been doing it rather differently, reaching diverging conclusions about how broad or how
narrow really that term should be adopted, to the point that we now, at our firm, have
come up with the ATDS interpretation continuum, if you will, of decisions.
And really what this has done, has led to kind of two divergent roads, two very contrasting
opinions about how this definition should be defined.
And really this boils down to three issues in the auto dialer definition.
They are the device's capacity to function as an auto dialer.
You know, should this just be based off of the device's present capacity as that device
actually exists, or its potential or probable capacity, you know, if it was changed in some
way.
Derek: Like what it could do.
John: What it could do eventually.
Derek: Yeah, okay.
John: The second issue is whether the device's auto dialer functions must be in use at the
time the alleging texts are made.
So, think of it as a switch.
Was that switch, the auto dialer switch, on when the text message was made, and is that
the only way that it violates the law, or even if that switch is off, even if it's a
manual text at that time, does that still violate the TCPA?
And then the third issue, and this is the really big one that we've been mentioning
a lot, is whether the ATDS definition only includes devices that can generate and dial
random or sequential numbers, or if it also includes devices that can dial numbers that
have been stored in that device from a very specific curated list of consumers who...
Derek: Like an opted-in list.
John: Like an opted-in list, correct.
And those are the three kind of big issues that have drawn two separate kind of lines.
Derek: So when you say that, you're talking about there's a bunch of different judges
in all kinds of different areas in the United States, and those are the issues that judges
continue to kind of waver on and decide on different, like one of the issues, you know,
whether it can store the numbers or not, or whether it's automatic.
You see judges actually ruling on both sides of that.
So that's where the confusion is.
It's not like those three things have been established.
Those are the problems that, because some judges think this way, some judges think this
way, and that's why we need the FCC to really come in and define it.
John: Correct.
And the interesting thing, you know, that we've been seeing, is not that, you know,
there are divergent interpretations.
Right?
Derek: Okay.
John: We see this in every area of the law in lots of cases.
You know, this is actually one of the main reasons the Supreme Court will hear a case
is because two major circuit courts have reached contrasting decisions about an issue.
Derek: Based on the same issue, like the same writing?
John: Based on the same question, correct.
Derek: Okay, yeah, yeah.
John: And that's normal.
What's really interesting here is that, you know, courts are reaching different interpretations.
You know, sometimes even the same court in different cases, or in neighboring jurisdictions
within the same circuit.
And that's really the interesting thing here.
You know, we are seeing courts that, you know, might be in the same state but have a different
portion of that jurisdiction reaching completely opposite conclusions about, you know, a term.
Derek: Well, one thing I found interesting that I think puts things in perspective is
the judges that are hearing these cases, they don't live and breathe text message marketing...
John: No, they do not.
Derek: ...they don't live and breathe TCPA compliance.
Most likely they might not have ever received a text message from a brand.
So I can see why somebody like...and these are the same judges that also do car wrecks
and, like, divorces.
So they are very broad things that they're looking at.
I can understand where they're getting completely...they see it so differently because ATDS, like,
what is that?
John: Such a technical term, yeah.
Derek: Yeah, and they gotta make a decision, so I can even see within the same kind of
courthouse people are just like, "Well, it sounds like, you know, this."
So that's, I guess, where the FCC really helps, because everything flows down from the FCC
until...you know, so that would make it good, but until that happens, everybody is just
making their own, like, interpretations.
John: And that's very dangerous for callers out there.
Derek: For like the brands that are doing text messaging, because it really could swing
either way on every one of those three, and that just makes it harder to plan.
John: It makes it very unclear for them to know whether the device that they use or the
platform they use is or is not going to be defined as an automatic telephone dialing
system.
And what's even worse is that if they are sued in opposing jurisdictions, in one jurisdiction,
their platform could be deemed not an ATDS, and then in the other, it could be.
And now if you get that...
Derek: Because it's not a higher court, it's the same level of court, so they don't need
to rely on what happened in this one or this one.
John: Correct.
And they'll look to each other but, you know, we're still seeing, you know, those two camps
emergent, and this is very dangerous for marketers and brands out there.
Derek: So the answer is the FCC really needs to come up with, or narrow the definition
or clarify the definition.
And, again, I'm guessing they don't tell you when they're going to do that.
John: They don't.
They are...you know, again, in May of 2018 they released a public notice asking for comments
on these TCPA interpretation issues.
Derek: So it's in progress kind of?
John: It is.
Derek: So at least you know it's...
John: It's in progress and, you know, the feedback is ongoing.
So brands are still, brands, everyone in the industry really is still being encouraged
to, you know, help guide the FCC and help the FCC, you know, realize the issues they're
facing and how they should interpret this extremely important term.
Derek: Makes sense.
And the FCC, they're good people, they want to help the businesses.
But also, that term applies to so many different kinds of calling, so many different kinds
of businesses and texting, calling, faxing, it's not as easy as just, "Well, you know,
just, it's this."
So I'm guessing it's going to be a big definition when it comes out.
John: It is, it will, it will.
Derek: Okay.
Well, that's interesting.
Well, that is a great answer to how have courts dealt with the definition of auto dialer.
And is that the same as ATDS?
John: It is, they are the same.
Derek: Okay, because a lot of people throw that acronym around, ATDS.
What does that stand for?
John: Automatic Telephone Dialing System.
Derek: Okay, or just auto dialer.
John: Correct.
Derek: Same thing, okay, in 2018.
Okay, my name is Derek Johnson from tatango.com.
We're answering TCPA questions.
This was a great answer.
Also ATDS, auto dialer, didn't even know, that's great that they're all the same.
Makes it easy.
This is John Nelson, a TCPA attorney, and, again, we're answering TCPA questions from
the internet.