I once read testimony from an “expert” hired by a plaintiffs’ firm in a TCPA class action who argued that literally anything is an automatic telephone dialing system (“ATDS”) as that term is defined in the TCPA and was interpreted by the FCC.
His logic was that the FCC interpreted the word “capacity” to include potential uses of a system after it had been modified with additional hardware or software. My oak desk, for example, could be modified with hardware and software to give it the capacity to dial telephone numbers without human intervention such that it would be an ATDS.
This “expert” opinion is obviously ridiculous and could not have been what Congress intended when it ruled that it is illegal to make calls using an ATDS to a cellphone without the recipient’s prior express consent.
If Congress had meant that, as the court in ACA International v. Federal Communications Commission noted, billions and billions of calls placed everyday by consumers on their cellphones would be illegal as modifying a cellphone to give it the capacity to dial without human intervention would be much easier than modifying my oak desk.
Thankfully, the ACA court struck down the FCC’s interpretation, but we are still left with the statutory definition of ATDS:
(1) The term "automatic telephone dialing system" means 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.
47 USC § 227.
The Ninth Circuit case, Satterfield v. Simon & Schuster, is also still on the books, and it held that the word “capacity” meant the ability to dial without human intervention, regardless of whether that ability was used on a given telephone call.
Which brings me to the topic of this article: It is a bad idea to name your non-ATDS dialer a “preview” dialer, either internally or in external documents, e.g. contracts or advertisements.
In Satterfield, the court considered a system which could toggle between “preview” and “predictive” modes and ruled that even “preview” calls placed by humans using that system were sent with an ATDS.
Plaintiffs’ counsel has seized on these terms and this distinction to argue that if you use the word “preview,” they would consider it an admission that there is another mode, i.e., a predictive mode, where the computer would dial without human intervention. Thus, they argue, the system must therefore be an ATDS.
Based on these cases, it is important to label your non-ATDS system something other than “preview,” e.g. “non-ATDS”.
Please contact me if you would like to discuss.