The current Telephone Consumer Protection Act (TCPA), originally created by Congress in 1991, is a confusing web of outdated guidelines. Perhaps most critical, the law doesn’t provide clarity on how companies can use automatic telephone dialing systems (ATDS) or artificial, or prerecorded, voice messages to operate their businesses.
Of course, the TCPA had good intentions –it was meant to protect consumers from abusive telemarketing practices. But the path to chaos and economic trouble is paved with good intentions. Since 2003, the FCC has maintained a capacious interpretation of the law and its definition of “autodialer,” in particular, has put countless businesses at risk for catastrophic class action suits.
The crux of the problem is the FCC uses a broad interpretation of the term “capacity” that dates back 25 years, meaning that almost any modern day technology device such as smart phones, tablets and laptops can be classified as an auto dialer. When the TCPA was enacted, only three out of every 100 people had a mobile device. By 2014, that number had jumped to 110 “subscriptions” per 100 persons. Mobile devices continue to evolve quickly and dramatically, from the latest version of the iPhone to 5G wireless technology; yet the TCPA and ATDS definition remain the same.
Now in the wake of a recent decision by the DC Circuit Court of Appeals in ACA International v. FCC, industry has come together to petition the FCC at last to redefine ATDS – specifically to make clear that the current generation of predictive dialers do not have the capacity to randomly generate telephone numbers.
In contrast to telemarketers who are looking to sell their goods or services, businesses rely on predictive dialing to communicate with customers, as well as their employees – restaurants broadcast shift changes, hospitals, doctors, and pharmacies remind patients of appointments and prescriptions, and schools reach parents with closure announcements. These everyday operations use predictive dialing not to harass a random subset of the general population, but to communicate with people with whom they have a regular relationship.
No one wants to be bothered at dinner time by telemarketers; but that’s not what we’re talking about. Businesses can be more efficient and streamlined by using this predictive dialing technology. It’s time to clarify the TCPA and issue a clear definition of ATDS so businesses can act with certainty when competing in today’s fast-moving market.
