Earlier this week, the Federal Communications Commission’s (FCC’s) Consumer and Government Affairs Bureau released a Declaratory Ruling clarifying the agency’s interpretation of the “Automatic Telephone Dialing System” (an “autodialer” or “ATDS”) definition in the Telephone Consumer Protection (TCPA). The Ruling clarified that, in the context of a call or text message platform, the definition does not turn on whether the platform is used by others to transmit a large volume of calls or text messages; instead, the relevant inquiry is whether, in this context, the platform is capable of transmitting calls or text messages without a user manually dialing each such call or text message.
The Declaratory Ruling was issued in response to a Petition filed by the P2P Alliance seeking confirmation that its text messaging platform is not an autodialer and therefore not subject to the TCPA’s ATDS-related consent requirements. These requirements generally prohibit using an ATDS to call or text a mobile number without the recipient’s consent. The Petition stated that the text messaging platform at issue required users of the platform “to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time.” The Petition also stated that recipients generally would provide their consent to receive such messages by providing their mobile numbers to the platform’s users.
The Declaratory Ruling clarifies that “the fact that a calling platform or other equipment is used to make calls or send texts to a large volume of telephone numbers is not probative of whether that equipment constitutes an autodialer under the TCPA.” Instead, referring back to the statutory definition (which, as we have explained, is subject to an ongoing circuit split), the agency reasoned that whether a platform or equipment constitutes an ATDS turns on whether it “is capable of dialing random or sequential telephone numbers without human intervention.” As a result, the Ruling concludes that a platform or equipment that “is not capable of making calls or sending texts without a person actively and affirmatively manually dialing each number” is not an ATDS. Finally, the Ruling finds that, even if the platform were considered an ATDS, to the extent the text message recipients at issue provided their mobile numbers for a particular purpose, and the informational text messages sent through the platform fell within the scope of that purpose, the TCPA’s ATDS consent requirements would be satisfied.
In a separate Declaratory Ruling released the same day, the FCC denied a Petition that sought an exemption from the TCPA’s ATDS consent requirements for health care-related calls or text messages that afford recipients an opportunity to opt out. The FCC denied the Petition in full, finding that such communications are and remain subject to the TCPA’s consent requirements.