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ATDS and Robocalls: All You Need to Know

Posted in Consumer Protection on March 11, 2019
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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, and How Can You File a Robocalls Lawsuit? - Nehora Law Firm

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.

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