The TCPA defines ATDS as “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.”
There has been a rift among the federal appellate courts regarding the TCPA’s broad autodialer definition. Recently the Sixth Circuit Court held that the TCPA’s ATDS definition includes telephone equipment that can automatically dial phone numbers stored in a list, rather than just phone numbers that the equipment randomly or sequentially generates. The decision widens a circuit split that will force the Supreme Court to finally weigh in.
The Supreme Court has agreed to resolve the circuit split on the autodialer definition issue by hearing the Facebook v. Duguid case.
In a previous blog from July, we wrote about the Supreme Court’s decision regarding the TCPA’s 2015 autodialer exemption. In that decision, the Court found that the TCPA exemption regarding collecting government-backed debt was indeed unconstitutional, so, rather than opening up the use of an ATDS for other categories, such as political calls, the Supreme Court severed the 2015 government-backed debt exemption from the TCPA itself. Calls to mobile numbers for collection of government-backed debt are now to be treated, once again, the same as other calls to mobile numbers. In practical terms, this decision affects only a fraction of the calls covered by the TCPA. For most entities that use autodialed calls, the decision does not affect their operations or their potential liability under the law.
In Allan v. Pa. Higher Educ. Assistance Agency, the U.S. Court of Appeals for the Sixth Circuit held that the Telephone Consumer Protection Act’s (TCPA) definition of an automatic telephone dialing system (“ATDS”) includes telephone equipment that can automatically dial phone numbers stored in a list, rather than just phone numbers that the equipment randomly or sequentially generates.
The decision widens a circuit split, with the Sixth Circuit agreeing with the Ninth and Second Circuits’ broader reading of the ATDS definition and rejecting the narrower reading adopted by the Third, Seventh, and Eleventh Circuits.
Will You Be Impacted?
LiveVox’s HCI is not directly impacted by this decision. HCI not only lacks random and sequential number generation, but it also does not automatically dial at all, whether from a list or otherwise. This is the position adopted by nine out of nine courts who have decided on the issue. As always, this does not constitute legal advice or any guarantee of future litigation results. If not using HCI, you may be impacted by this decision, depending on the system used and the jurisdiction into which you are calling.
Is Anyone Above the Fray?
With the TCPA, nobody is above the fray, there are no safe harbors, and the name of the game is intelligent risk mitigation. It is best to review your calling methodology and destinations in light of this decision and consult with compliance and legal teams to establish a comfort level. While we do not provide legal advice, LiveVox is always here to discuss its own technology and its risk-mitigation properties.
LiveVox is a next-generation contact center platform that powers more than 14 billion interactions a year. We seamlessly integrate omnichannel communications, CRM, and WFO capabilities to deliver an exceptional agent and customer experience while reducing compliance risk. Our \ reliable, easy-to-use technology enables effective engagement strategies on communication channels of choice to drive performance in your contact center. Our battle-tested risk mitigation and security tools help clients maximize their potential in an ever-changing business environment. With 20 years of pure cloud expertise, LiveVox is at the forefront of cloud contact center innovation. Our more than 450 global employees are headquartered in San Francisco, with offices in Atlanta; Denver; New York City; St. Louis; Medellin, Colombia; and Bangalore, India.