FCC Says Platforms That Require Manual Dialing Do Not Meet Definition of Autodialer Under TCPA

The Federal Communications Commission last week issued a Declaratory Ruling in which it determined that a calling platform does not meet the definition of autodialer under the Telephone Consumer Protection Act — whether it is used for placing calls or sending text messages — if the platform is “not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one.”

The FCC was acting on a petition that was filed in 2018 by the P2P Alliance, a network that uses peer-to-peer text messaging services for schools, non-profits, and other groups. Consumer groups, including the National Consumer Law Center opposed the petition, saying there was not enough information to determine if an autodialer was being used and expressing concerns that the “massive” number of text messages that are sent in “tiny” periods of time indicates that the individual involvement in sending messages “is so vanishingly small as to be meaningless.”

But the time it takes a number of text messages to be sent does not factor into whether the platform constitutes an autodialer, the FCC ruled. Rather than ruling specifically on whether the platform used by the P2P Alliance constitutes an autodialer, the FCC opted to provide general guidance.

“We clarify, however, that if a texting platform actually ‘requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time’ and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number, as suggested in the P2P Alliance Petition, then such platform would not be an ‘autodialer’ that is subject to the TCPA,” the FCC wrote in its ruling.

The FCC also reiterated that as long as the called party has provided consent to be contacted, it does not matter whether an autodialer is used or not.

“The Commission has repeatedly made clear that ‘persons who knowingly release their telephone numbers’ for a particular purpose ‘have in effect given their invitation or permission to be called at the number which they have given’ for that purpose, absent instructions to the contrary,” it said.

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