CUNA urges FCC to reject broadening of autodialer definition

October 18, 2018

A court decision that broadens the definition of an automated telephone dialing system (ATDS) is flawed and should be rejected, CUNA wrote to the Federal Communications Commission Wednesday. The FCC issued a petition requesting comment earlier this month in light of a Ninth Circuit Court decision.

Specifically, the court decided in Marks vs. Crunch San Diego, LLC that an ATDS need only have the capacity to dial stored numbers as a list to qualify as an autodialer which is limited under the Telephone Consumer Protection Act (TCPA). CUNA has expressed numerous concerns about the TCPA’s impact on credit unions contacting their members with important information, and  primary concern deals with the definition of an autodialer.

“The result of the Ninth Circuit’s erroneous analysis is a definition of ATDS that provides little meaningful guidance to callers and is untethered from the TCPA’s text and purpose," CUNA wrote. "Compounding this interpretational affront is the fact that the Marks decision possibly sweeps in every smartphone—potentially subjecting nearly all American consumers to TCPA liability for their routine calls and texts."

CUNA’s comments call for the FCC to reject the Ninth Circuit’s interpretation and confirm that a device qualifies as an ATDS only if it presently possesses the functions expressly stated in the TCPA’s statutory definition of ATDS, that is it must be able to:

  • Store or produce numbers to be called, using a random or sequential number generator, and
  • Dial those numbers.

In other words, CUNA believes equipment that only dials numbers from lists does not qualify as an ATDS.

CUNA also called on the FCC to “confirm that human intervention in the calling process disqualifies a device from being an ATDS.

“To further clarify the reach of the TCPA, the Commission should also conclude that the TCPA only applies to calls or texts that are made using a device’s autodialing functionality,” the comments add. “Properly defining an ATDS—according the TCPA’s text and Congressional intent—will substantially reduce uncertainty and help mitigate the onslaught of TCPA litigation.”

CUNA submitted a petition earlier this year calling for an FCC ruling on the definition of autodialer.