Enacted in 1991, the Telephone Consumer Protection Act (TCPA) was designed to prohibit certain telemarketing calls made via an “automatic telephone dialing system” or ATDS. The TCPA was passed to strike a balance between protecting the privacy of individuals, while still permitting legitimate telemarketing practices. In modern times, however, the TCPA has been expanded well beyond its intended purpose and scope.

The TCPA defines an ATDS as any device with the “capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers,” 47 U.S.C. Section 227(a)(1)(A)-(B). In an attempt to clarify this definition, the Federal Communications Commission (FCC), the agency to which Congress delegated regulatory authority, issued a declaratory ruling and order in 2015 rejecting the argument that a device’s capacity be measured solely by reference to its present capacity without any modification (2015 declaratory ruling). Instead, the FCC expanded the definition to include any device with the theoretical or potential capacity to store and generate random calls—irrespective of whether the device’s current configuration actually could do so. Much to the relief of businesses, however, two recent appellate court decisions have narrowed the definition of capacity under the TCPA.

An Autodialer by Any Other Name

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