What Does the Sixth Circuit Decision on the TCPA Autodialer Definition Mean?

The Context

 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.

The Case

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. 

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, NICE is always here to discuss its own technology and its risk-mitigation properties. 

FAQs

What are the TCPA rules and regulations for autodialers in contact centers?

In contact centers, where compliance and customer relations intertwine, understanding TCPA autodialer rules is of paramount importance. The TCPA sets the stage, outlining guidelines that contact centers must adhere to when employing autodialers for customer outreach. So, what are these TCPA autodialer rules, and how do they shape contact center operations?

The TCPA autodialer rules are a set of regulations designed to protect consumers from unsolicited and intrusive automated calls. The TCPA defines an autodialer as any device capable of storing and dialing telephone numbers without human intervention. These rules acknowledge the need for privacy and aim to ensure that consumers have the right to control the calls they receive.

When operating within the boundaries of TCPA autodialer rules, contact centers must obtain prior express written consent from consumers before using autodialers for marketing or informational purposes. This consent must be clear and conspicuous and provide a transparent understanding of the intended communications.

Furthermore, TCPA autodialer rules require contact centers to maintain a “Do Not Call” list, promptly honoring consumer requests to be removed from future automated campaigns. This practice not only upholds compliance but also nurtures a relationship of respect between businesses and their customers.
A crucial aspect of TCPA autodialer rules is the restriction on unsolicited calls to mobile phones using autodialers without explicit consent. Additionally, autodialed calls to residential landlines must also comply with specific time-of-day restrictions.

Penalties for violating TCPA autodialer rules can be severe, emphasizing the necessity of stringent compliance measures. Non-compliance can result in financial penalties and potential damage to a contact center’s reputation.

In essence, TCPA autodialer rules govern the interaction between contact centers and their audience, ensuring a balance between customer engagement and consumer protection. By adhering to these rules, contact centers can foster trust, enhance customer experiences, and contribute to a landscape of responsible communication.

How does the TCPA affect the use of automated dialers in contact centers?

The TCPA has a significant influence on the utilization of automated dialers. These automated dialers, often employed for efficient outreach, fall under the watchful gaze of TCPA regulations, profoundly impacting how contact centers communicate with their audience.

The TCPA automated dialer rules form a safeguard against intrusive and unsolicited communications. An automated dialer, as defined by the TCPA, encompasses any technology with the capacity to store and dial phone numbers without human intervention. This umbrella includes predictive dialers, autodialers, and even certain SMS platforms.

The core principle of the TCPA automated dialer rules revolves around consent. Contact centers are required to obtain prior express written consent before utilizing automated dialers for marketing or informational purposes. This consent must be clear, informed, and unmistakably indicate the consumer’s acceptance of automated communication.

Moreover, the TCPA automated dialer rules introduce the concept of the “Do Not Call” list. Contact centers must honor consumer requests to be excluded from automated campaigns, ensuring that these preferences are respected. This not only upholds legal compliance but also cultivates a respectful rapport between businesses and their audience.

The TCPA’s impact extends to mobile phones as well. The use of automated dialers to reach mobile phones without explicit consent is restricted. Furthermore, strict time-of-day restrictions apply to automated dialer communications to residential landlines, underscoring the importance of timing and consideration.
Non-compliance with TCPA automated dialer rules can lead to significant financial penalties and reputation damage for contact centers. This highlights the necessity for meticulous adherence to these regulations.

In essence, the TCPA automated dialer rules shape the landscape in which contact centers operate, blending effective communication with legal responsibility. By navigating these rules diligently, contact centers can foster trust, ensure consumer protection, and maintain a harmonious equilibrium between outreach and compliance.

What considerations should be taken into account for TCPA compliance with dialers?

Adhering to TCPA regulations when using dialers is of utmost importance. These considerations are the compass that guides contact centers toward ethical and compliant communication practices.

First and foremost, understanding the scope of the TCPA dialer regulations is crucial. The TCPA defines an autodialer broadly, encompassing various types of dialing technologies. It’s essential to determine whether the dialer used falls under this umbrella and is subject to TCPA rules.
The cornerstone of TCPA dialer compliance lies in obtaining prior express written consent. Before utilizing dialers for marketing or informational outreach, contact centers must ensure that consumers have provided explicit permission. The consent must be clear and informed and specifically indicate the acceptance of automated communications.

Maintaining and respecting the “Do Not Call” list is another vital consideration. Contact centers must promptly honor consumer requests to be excluded from dialer campaigns. Regularly scrubbing contact lists against the “Do Not Call” database ensures that no inadvertent communications occur.

Additionally, understanding the TCPA’s treatment of mobile phones is crucial. Using dialers to reach mobile phones without explicit consent is restricted. This applies to both voice calls and SMS messages.

Time-of-day restrictions for residential landline communications are yet another consideration. TCPA dialer rules dictate that automated calls to residential lines must occur within reasonable hours, preserving consumer peace and privacy.

Incorporating robust record-keeping practices is essential for TCPA dialer compliance. Maintaining records of consent, communications, and opt-out requests showcases diligent efforts toward compliance.

Non-compliance with TCPA dialer rules can result in substantial penalties and reputational damage. Therefore, it’s imperative for contact centers to institute comprehensive training programs that educate staff about TCPA regulations and their implications.

In essence, the considerations for TCPA compliance with dialers are the pillars of ethical communication. By aligning practices with these regulations, contact centers not only avoid legal pitfalls but also cultivate a reputation of trustworthiness and respect for consumer rights.