The Automatic Telephone Dialing System (ATDS), also known as an auto dialer, is equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential numbered generator, and has the capacity to dial such numbers, according to the Telephone Consumer Protection Act (TCPA). Text messaging is also covered under the ATDS definition.
Under the TCPA, it is a violation for a business to use an ATDS to call consumers without their consent. It also requires that customers must be able to opt-out of future robocalls during a robocall, and prohibits auto-dialers from calling emergency phone lines, among other restrictions.
The future of ATDS is still yet to be determined…
In December 2020, the U.S. Supreme Court will hear arguments in Facebook v. Duguid (Case 19-511), which began as a Lemberg Law class action lawsuit and now poses a central question relating to the federal Telephone Consumer Protection Act: What constitutes an automatic telephone dialing system?
The Supreme Court’s decision to review the case comes closely on the heels of its decision in Barr v. American Association of Political Consultants. In that case, the Court ruled that Congress’ 2015 amendment to the TCPA that allowed robocalls in order to collect government-backed debts was unconstitutional, but that the TCPA itself wasn’t unconstitutional.
What is a Robocall?
The Federal Trade Commission (FTC) defines a robocall as a phone call that uses a computerized autodialer to deliver a pre-recorded message, as if from a robot. The calls can be made at any time and to any number because the dialing is computerized. The message may originate overseas, pass through computers to U.S. telephone carriers to your phone. Robocalls include both telephone calls and text messages.
What Can I Do to Fight Robocalls?
To stop robocalls, you can add your name to the federal government’s National Do-Not-Call Registry and report any calls you receive after listing, or you can buy a call-blocking app. To prevent robocalls, for example, when signing up for a retailer’s service or website be careful that you do not inadvertently check a box allowing them to send you marketing calls.
Additionally, you should avoid calls from unknown or suspicious numbers. If you answer a robocall, do not respond to the invitation to opt out. This verifies that you have a working number and makes you a target for other robocallers. You should also never ever answer “yes” on the phone because your recording could be used to authorize charges. If you are being harassed due to robocalls, you can file a complaint with the FTC.
What Must Happen When Obtaining Written Consent?
When a marketer is seeking written consent, disclosures should be clearly displayed. The marketer must disclose to the individual that giving permission will allow the marketer to make autodialed robocalls and/or text messages and that providing consent is not a condition of any purchase. By signing the agreement, the consumer is authorizing ATDS telemarketing or advertised calls or texts.
Are There Exemptions Under The TCPA for Robocalls?
There are some robocalls that are legal. Politicians and charitable organizations can legally use robocalls. Robocalls also can be made to public service announcement, like a weather warning or emergency, and some personal messages, like a reminder for a medical appointment, and to do surveys.
How Can I Add My Number to the Do Not Call Registry?
To register your phone number for the federal government’s National Do Not Call Registry or to get information about the registry, visit www.donotcall.gov, or call 1-888-382-1222 from the phone number you want to register. The website states that you will get fewer telemarketing calls within 31 days of registering your number.
How can Lemberg Law help me?
If commercial auto dialers have been hounding you with and you never expressed consent to receive those messages, to speak with a representative directly and immediately call 844-685-9200 for a free, no-obligation case evaluation. Our attorneys have experience standing up for consumers. If a business has violated Telephone Consumers Protection Act or the Fair Debt Collection Practices Act, you’re entitled to file suit in federal court and could be awarded up to $500 per call and other damages.
About the Author:
Sergei Lemberg is an attorney focusing on consumer law, class actions related to automotive issues, and personal injury litigation. With nearly two decades of experience, his areas of practice include Lemon Law (vehicle defects), Debt Collection Harassment, TCPA (illegal robocalls and texts), Fair Credit Reporting Act, Overtime claims, Personal Injury cases, and Class Actions. He has consistently been recognized as the nation's "most active consumer attorney." In 2020, Mr. Lemberg represented Noah Duguid before the United States Supreme Court in the landmark case Duguid v. Facebook. He is also the author of "Defanging Debt Collectors," a guide that empowers consumers to fight back against debt collectors and prevail, as well as "Lemon Law 101: The Laws That Lemon Dealers Don't Want You to Know."
