November 19, 2015

California Court Rules Desktop Phone Not an ATDS

For businesses who rely on the use of telephones to reach prospects and customers, it’s critical that you familiarize yourself with the current regulations surrounding automatic telephone dialing systems (ATDs).

As a refresher, this past July, the Federal Communications Commission (FCC) issued a Declaratory Ruling clarifying the definition of an Automatic Telephone Dialing System to keep up with ‘changes in technology design.’ According to the FCC, an ATDS is defined as any equipment that “has the capacity, even with some modification, to dial random or sequential numbers….even if the caller is not currently or presently dialing random or sequential phone numbers but is instead calling a set list of numbers.”

In the dissenting opinion to the Ruling, it was debated whether the new definition of ATDS was so broadly applied that any phone potentially has the capacity to be an ATDS, including a desk phone.

Since the ruling went into effect, several petitions were brought to the FCC addressing whether the need for human intervention to dial a number be the classifying standard of a phone being considered an ATDS. The FCC rejected this request stating that while human intervention is a standard, whether it solely classifies a non-ATDS will be determined case-by-case.

This was put to the test recently in California in the Frejya v. Dunn & Bradstreet, Inc. et al. case in which Dunn & Bradstreet Inc. was accused of using an ATDS to make unsolicited calls to wireless telephone numbers and numbers on the National Do Not Call Registry. The U.S. District Court for the Central District of California ruled that a solicitation call to a cell phone by a desktop phone was not a violation of the TCPA’s prohibition of an ATDS from dialing a wireless number.

The defendant claimed that the caller “manually pressed by hand each digit of the unlisted business’s phone number on the dialing pad of their regular desktop telephones.” The Court in this case held that “undisputed facts demonstrate that plaintiff was not called from an ATDS.”

Although decisions surrounding automatic telephone dialers are being assessed on a case-by-case basis, the verdict here provides a more narrow interpretation of an ATDS, giving the industry a bit more clarity. In this situation, human intervention was the primary factor in determining that the phone used to make these calls was in fact not classified as an ATDS.