ATDS and Robocalls: All You Need to Know
An automatic telephone dialing system (ATDS) is a device or technology that can store, retrieve and dial telephone numbers – without manual intervention.
Receiving ATDS phone calls can be a common, and frustrating, experience for consumers.
They are commonly used by telemarketers or companies to make advertising calls to their customers. The Telephone Consumer Protection Act (TCPA) intends to prohibit companies from using the technology to make harassing calls and protect the consumers' rights of privacy.
Here's everything you need to know about an automatic telephone dialing system (ATDS), robocalls, and how to prevent them, as well as TCPA lawsuit information.
What Are Robocalls?
A robocall generally refers to any call made using the ATDS or calls using a pre-recorded message or artificial voice.
The law interprets this dialing system as "equipment that 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".
It is considered illegal for companies to make robocalls, unless they obtain prior express consent of the called party or the call is made for emergency purposes.
Can an ATDS Also Be a Text Message?
Initially, TCPA concerned itself with automated calls and unsolicited advertising faxes. It has gradually expanded to include unsolicited advertising text messages as well. It is counted as a "call" and follows all the regulations applicable to robocalls.
Whether these messages are generated by an automatic telephone dialing system, is a matter of debate. The technical definition of ATDS does not describe spam text messages.
However, using messaging platforms or API to send uniform text messages to multiple numbers has been argued successfully in some courts as a form of ATDS-based messaging. Some states prohibit or limit text advertising despite the mechanism of sending them.
How to Prevent Robocalls
Since TCPA was established in 1999, many companies often argue about the vagueness and large scope of such calls.
The law's interpretation of automated calls is so broad, that the use of automatic telephone dialing system itself is considered risky.
FCC Declaratory Ruling and Order, 2015
In response, TCPA clarified some of these terms in 2015. The TCPA Omnibus Declaratory Ruling and Order clarifies that:
- A robocall is illegal even if the called party does not answer the calls.
- The term "call" has also been expanded to mean voice and text messages.
- The "called party" is used to refer to the actual recipient of the call (not the intended recipient).
- In its definition of automatic telephone dialing system, the law also clarifies the term "capacity" as equipment that is capable of functioning like an automatic telephone dialing system even if it hasn't been used in that manner. As long as the device has more than the theoretical potential to function like an ATDS, it is considered a TCPA violation.
Apart from this, the FCC also recognizes "predictive dialers" as robocalls. The term is used to describe equipment that dials numbers and can also predict when a sales agent can take calls.
By itself, predictive dialers cannot store or produce numbers and dial them at random but when they are paired with a particular software, it becomes possible to do so. Telemarketers use this to make sure that a salesperson is always available when the customer answers the phone.
When Are Robocalls “Legal”?
While robocalls are illegal, they can be justified with prior express consent. Most people do not know if they have consented to receive automated calls.
Often, entering your phone number in loan applications or an online contact form automatically provides consent. However, this consent can be revoked either verbally or in writing.
Filing a Robocalls Lawsuit
A verbal revocation of consent is accepted in some states (and some courts). In these cases, you can simply say “stop calling me“.
This will effectively revoke consent and the robocalls will stop. If they don’t, the court considers it a willful violation of the law.
This entitles you to $1,500 per violation (call or message).
A written consent requires the signature of a consumer on a form that explicitly states the company’s ability to robocall the consumer for the purpose of advertisement.
This consent form must be clear and unambiguous. Further, consent can be used by the company in return for their goods/services.
How Human Click Interface Avoids TCPA Law
Human Click Interface (HCI) is often used as a way to circumvent the TCPA. In relation to ATDS, the law uses the phrase “without human intervention” to describe the equipment.
In response to this, telemarketers often use a device that functions like an automatic telephone dialing system predictive dialer but with a modification which requires a human to click a telegraph key to make the call.
HCI systems require a human to click a mouse of telegraph key as rapidly as possible to simulate a traditional ATDS predictive dialer. It has a preset rate of dialing which does not require the human click.
Some courts have held that these devices do not qualify as an automatic telephone dialing system as they require human intervention for each call.
Recently, there has been much debate regarding the definition of terms such as ATDS, sufficient human intervention and so on. Some companies find that the expansive definition offered by the law is exploitative.
ACA International, a group representing credit and collection agencies recently challenged the broad nature of TCPA regulations.
The U. S Court of Appeals for the District of Columbia Circuit ruled that the regulations against robocalls target anybody with a smartphone. It puts innocent people at the risk of being implicated in a federal crime.
Exemptions to Robocalls
Robocalls are exempt from TCPA’s prohibition provided they are:
- Made with an attempt to collect a debt owed to the United States government
- Pre-recorded collect call introductions
- Made by your wireless carrier (with the condition that it does not advertise or charge you for the call).
How to Recognize a Robocall
The use of this dialing system to make a call is often proved in court. However, there are some signs that a caller is using an ATDS:
- High volume of calls
- Dead air
- A pause before a caller comes on the line
- Dropped calls
- A telephone number which automatically disconnects if you call it back
You can avoid robocalls in a number of ways.
One of the most effective ways to do this is to register your number on the National Do Not Call Registry. Telemarketers are prohibited from calling numbers on this list.
If you are a victim of frequent robocalls and messages, a TCPA lawyers can assist you in filing a TCPA violation.
Get in touch with us right away if you’ve been getting such calls and let our law firm help you.