What is an Autodialer?
The TCPA defines the term ATDS or “autodialer” to mean equipment which “has the capacity” ( 1) to store or produce telephone
numbers to be called, using a random or sequential number generator; and ( 2) to dial such numbers. This system might connect
the recipient to a human after placing the call, or it might contain
an automated message. An “autodialer” also includes a “
predictive dialer,” which is equipment that is paired with software that
dials a number, predicting when a sales associate will be available
to take a call. The predictive dialer also has the capacity to store
or produce numbers, and dial these numbers either at random,
sequentially or from a database.
Under this broad autodialer definition, the FCC has determined
that essentially all phone systems, other than rotary phones, have
this “capacity,” even where no such function has been enabled.
The TCPA rules apply to text messages as well, as the FCC has
determined a “text” is a “call” for purposes of this rule. Therefore
the TCPA’s reach is far and wide.
Consent is required for almost all text messages and calls to mobile
numbers; the content and purpose of the message determines
whether the consent must be in writing, or may be “express.” The
calls and texts where there is no consent necessary are those that are:
■ ■ ■ Manually dialed without any prerecorded or automated message, for an “emergency” purpose;
■ ■ ■ Those that are not for a business purpose and are from a nonprofit and on the non-profit’s behalf; and
■ ■ ■ Those which are specifically exempted by a rule or declaration
from the Commission.
For purposes of the TCPA, “emergency” communications
under 47 C.F.R. § 64.1200, are those “made necessary in any
situation affecting the health and safety of consumers.” Calls and
texts may not be made to those that appear on the FCC National
Do Not Call List or an internal Do Not Call List. Those that are
emergency in nature may not incur a charge. Generally, calls
or texts must contain (within the call or text), a “mechanism
for recipients to easily opt out of future calls” and texts. These
communications must identify the sender/caller and are limited
to three within any three-day period, per event, with phone
messages being under one minute and text messages no more
than 160 characters.
Informational Calls and Texts
Informational calls and texts require prior express consent, but do
not require consent in writing. These calls have the same techni-
cal requirements as stated above. Examples of informational calls
would be a call to let a customer know their checks are ready for
pickup at a branch, or a call to let the customer know their certificate
of deposit is maturing. Again, be careful that you do not add sales
messages about how they could rollover that CD, because then it
is marketing, and you would need written consent, as discussed
below. Debt collection calls would come under informational as
long as there is no marketing crossover—however, consent must
be given in connection to the underlying debt—for example, by
the customer on their loan application. There is currently some
debate about exemptions where the call is to collect federal gov-
ernment debts, which is beyond the scope of this article. For the
time being, it is best to err on the side of caution with these too,
and obtain prior express consent.
It is important to note that the FCC has determined that a customer has given express consent when the customer knowingly
releases their phone number. An example of this would include
a customer listing their cellular number on an account, loan application or other official documentation. The burden to show
the caller had consent is always on the caller. Thus, a financial
institution would be wise to note how they obtained a customer’s
phone number, as well as if the number is currently a mobile
number and as discussed below, notation of whether the phone
number remains valid. Understand also that where you have a
landline number, the number can be “ported” or converted into
a cell number, thus it would be wise to treat all calls as if they
were to a mobile number.
Written Consent—Telemarketing Calls and Texts
Financial institutions that initiate telemarketing calls using an
autodialer, and using artificial voices or prerecorded messages,
are required to obtain express written consent for telemarketing
calls (including text messages). Such calls and texts must comply
with the requirements stated above.
Calls that are “telemarketing” in nature, include any calls during which there is encouragement to purchase of investments,
property, goods, or services. For these calls, prior written consent
must contain the following:
■ ■ ■ An identification of the entity to whom consent is being provided, and the customer’s phone number which will be used
for the communications; and
■ ■ ■ A disclosure, which must also be clear and conspicuous informing the person signing that by executing the agreement,
they authorize the seller to deliver telemarketing calls using an
automatic dialing system, or an artificial or prerecorded voice.
The disclosure must also include a statement that the person
is not required to sign the agreement, or agree to enter into
such an agreement, as a condition of purchasing any property,
goods or service.
The signature may be electronic or digital if such signature
complies with E-Sign. Once prior consent is granted, there are
restrictions to the content and frequency of messages that are the
same as stated above for other calls.
As with emergency communications,
the requirements to identify the sender/caller,
and the requirements for brevity and frequency,