United States: Litigation Alert >> "Dialing It Back?" Federal Courts Weigh In On "Autodialers" After Appeals Court Strikes Down FCC Interpretation Of TCPA

Following a March 2018 by the United States Court of Appeals for the D.C. Circuit that rejected certain Federal Communications Commission (FCC) interpretations of the Telephone Consumer Protection Act (TCPA), a federal district court has ruled that prior FCC rulings on elements of the TCPA – and even previous district court opinions adopting those rulings – are no longer due any deference on those elements.

Then, applying its own analysis of the TCPA's provisions, the court found that a defendant's computerized dialing platform was not an "Automated Telephone Dialing System" (ATDS) under the TCPA, and granted summary judgment dismissing a putative class action claim against that defendant.


As explained in our previous alerts, the TCPA generally prohibits the use of an ATDS to call or text wireless phone numbers without advance express consent. The TCPA defines an ATDS as equipment that "has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers." A 2015 FCC order broadly defined this "capacity" to encompass even "potential functionalities" achievable with modifications, such as software changes. The 2015 FCC order also reaffirmed prior rulings that a "predictive dialer" qualifies as an ATDS, and declined to rule that a dialer is not an ATDS unless it has the capacity to dial without human intervention.

In March 2018, however, the DC Circuit ruled on several consolidated appeals from TCPA litigation throughout the country, and determined that the 2015 FCC Order's interpretation of "capacity" was unreasonably over-expansive in light of the intent behind that statute itself. In that case, ACA International v. FCC, the court set aside the FCC's effort to clarify the types of equipment that qualify as an ATDS, although the court left it to the FCC to further rule as to what qualifies as an ATDS going forward.

Autodialers: A Whole New Ballgame?

In Herrick v. GoDaddy.com LLC, the U.S. District Court for the District of Arizona held that a certain text messaging system used by GoDaddy's vendor to send a one-text marketing campaign to approximately 100,000 customers of the popular domain name registration service was not an ATDS. In light of the DC Circuit's ruling in ACA International, the district court declined to follow previous FCC opinions and court decisions holding that devices such as predictive dialers, which automatically dial from a list of preprogrammed numbers, are de facto ATDSs. Instead, the court found that this system was not an ATDS because it messaged a preprogrammed list of numbers but could not dial "using a random or sequential number generator." Further, even if the system in Herrick could have done so, the court found that it was still not an ATDS because it lacked the ability to dial without human intervention: a GoDaddy employee had to provide a list of phone numbers to receive the message; the vendor had to upload that list; an employee had to draft the message to be sent and select the date and time for transmission; and an employee had to enter a "Captcha" code, designed to ensure that a human, not a machine, was authorizing the message. While the FCC had previously rejected the "human intervention test," the court reasoned that this rejection was no longer relevant in light of the ACA International decision, which found the rejection inconsistent with the FCC's simultaneous interpretation of an ATDS as a system whose "basic function... is to dial numbers without human intervention." Based on these findings, the court granted summary judgment in GoDaddy's favor. The plaintiffs have appealed that decision.

Notably, while the Herrick decision bodes well for marketers, it may not represent a uniform approach by all courts going forward. The same day as the Herrick decision, another federal court held that a predictive dialer used by a collection agency was an ATDS. In Reyes v. BCA Financial Services, the US District Court of the Southern District of Florida found itself to be bound by the FCC's interpretations of an "ATDS" under the TCPA despite ACA International. Under those interpretations, the court found BCA's predictive dialer, as it was then configured and used – to automatically dial a list of phone numbers – to be an ATDS, despite its inability to dial random or sequential numbers. Although the court did distinguish systems that included "point-and-click" dialing systems that required human intervention, the court found that BCA Financial's system did not involve any human intervention.


The Arizona federal court's decision in Herrick seems to be a sounder approach to determining what constitutes an ATDS after ACA International. Still, as the Reyes case demonstrates, the Herrick approach is not the only one, and even that approach will now be tested on appeal. The FCC requested comments from the public on what constitutes an ATDS after ACA International; which were due no later than June 13, 2018, so it will likely be many months before the FCC issues a new interpretation of ATDS. Meanwhile, marketers and agencies must remain careful to comply with the TCPA's restrictions on automated dialing, knowing that the FCC's previous interpretations may still be applied in the interim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions