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Autodialers are a hot topic in the litigation world these days. Here’s an update on where things stand as of the start of 2015.

The Telephone Consumer Protection Act (TCPA) prohibits making any autodialed call or text message to cell phones without the called party's prior express consent. Yet, there is a lack of legal clarity on what devices are properly classified as autodialers under the TCPA. This has led to many recent battles in the courts and numerous petitions submitted to the FCC (News - Alert) requesting clarification.

The TCPA definition of an autodialer is “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.” A 2003 Federal Communications Commission (FCC) revision of TCPA rules concluded that in order to be considered an autodialer, the equipment need only have the "'capacity' to store or produce numbers . . .." As such, the FCC found that "predictive dialers," which dial numbers and use certain computer software to assist telemarketers in predicting when a sales agent will be available to take calls, are autodialers under the TCPA.

But the question of what “capacity” means is still open to interpretation. Should it be broadly interpreted and include any device that has the ability to store or produce numbers and dial the numbers randomly, or should it be narrowly defined to mean those devices that have the present capacity to function as an autodialer.

The courts have taken differing views on this question. In the often cited Satterfield v. Simon & Schuster(9th Cir. 2009) ruling, the court stated that the focus of the inquiry must be whether the equipment has the capacity to store or produce numbers to be called using a random or sequential number generator rather than whether the equipment actually did perform that function.

The broad definition has led to the classification of a "preview dialing" system as an autodialers in some instances. In Nelson v. Santander Consumer USA (W.D. Wis. 2013), the court disregarded the human intervention element in again finding that "the question is not how the defendant made a particular call, but whether the system it used had the 'capacity' to make automated calls."

But some courts have been more narrow. In Hunt v. 21st Century Mortgage Corp.(N.D. Ala. 2013), the court decided that since the defendant's telephone system in its present state was incapable of automatic dialing, the system was not an autodialer. Other cases have also found that “capacity” means “present, not potential capacity” to produce and dial numbers.

With the definition of “capacity” at the heart of the legal issues around autodialers, telemarketers and the contact center industry is obviously looking for clarification from the FCC. Many organizations have filed petitions with the FCC advocating a narrow definition of at last a specific definition of capacity that can be used to avoid legal disputes.

The FCC recently issued a ruling on junk faxes under the TCPA and Junk Fax Prevention Act, which requires that fax ads sent with the recipient's prior express permission include an opt-out notice. Some believe this signals the start of more FCC guidance on TCPA matters, and it is speculated by some that additional petitions will be addressed in early 2015.

There’s still legal ambiguity, but it is looking positive that this uncertainty might be coming to an end soon.