What Is An “Autodialer” Under The TCPA?
Everybody I have talked to has received unwanted auto-dialed calls to their cell phone. Also known as “robocalls” these unpleasant interruptions of our daily life can be violations of a consumer protection law.
The Telephone Consumer Privacy Act (“TCPA”), 47 U.S.C §227 prohibits unwanted robocalls to a consumer’s cellular phone. The company placing these nuisance calls can be liable for each call in an amount up to $1,500 if the call was made by an autodialer or Automatic Telephone Dialer System (“ATDS”).
Much of the litigation surrounding this law relates to what constitutes an autodialer. Thankfully the Ninth Circuit Court of Appeals has provided clear guidance as to what constitutes an autodialer. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). In Marks, the Ninth Circuit held that “the statutory definition of ATDS includes a device that stores telephone numbers to be called.” Id. at 1043.
One of the tests then is whether or not the device used to place the calls stores telephone numbers. In another recent case finding a system was to be classified as an ATDS the court focused on the system’s ability to dial calls from a stored list of phone numbers. Singer v. Las Vegas Athletic Clubs, 376 F.Supp.3d 1062 (D. Nev. 2019). The fact that the system could not generate numbers on its own did not mean that it was not an ATDS. Id. at 1072.
Thus, if you are receiving auto-dialed calls from banks, debt collectors, car finance companies, credit unions, mortgage companies, cable companies, medical providers, or any other creditor there is a pretty good chance they are using an ATDS. Keep in mind that text messages are also considered a “call” under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009).