October 2010 : Preview Dialing: Manual v. Automatic?
by Joseph Sanscrainte, an attorney specializing in telemarketing law..
As everyone in the teleservices industry knows, the FCC has determined that if you?re using a predictive dialer to make calls, you have to scrub out wireless numbers. Specifically, under the Telephone Consumer Protection Act of 1991, as well as regulations issued by the FCC, it is prohibited for any entity to call a wireless number, without prior consent or in the event of an emergency, if the entity uses an "automatic telephone dialing system to make the call.? The pertinent regulations state:
No person or entity may . . . [i]nitiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice . . . [t]o any telephone number assigned to a . . . cellular telephone service.
The terms automatic telephone dialing system and autodialer mean equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.
The question that I keep hearing, however, is: "What about preview dialing? Is that an automatic telephone dialing system (ATDS)? Even though no call gets made unless a human presses a button, the underlying technology has the ?capacity? to store or produce telephone numbers to be called, right??
Well . . . the devil is in the details. At the time of the passage of the TCPA in 1991, the above rule had an immediate impact - entities that were making use of automatic telephone dialing systems (ATDS) to generate calls randomly or via sequential dialing were unable to do so in the context of calling wireless numbers. It was not until 2003, however, that the full impact of this language was made clear to the telemarketing industry. In a rulemaking dated July 25, 2003, the FCC considered the question of whether a predictive dialer met the definition of an ATDS given in the TCPA. The key part of the FCC?s reasoning in determining that a predictive dialer was, in fact, an ATDS, is as follows:
The TCPA defines an "automatic telephone dialing system" as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." The statutory definition contemplates autodialing equipment that either stores or produces numbers. It also provides that, in order to be considered an "automatic telephone dialing system," the equipment need only have the "capacity to store or produce telephone numbers. * * * The basic function of such equipment, however, has not changed--the capacity to dial numbers without human intervention. Coupled with the fact that autodialers can dial thousands of numbers in a short period of time, calls to these specified categories of numbers are particularly troublesome.
The FCC concluded essentially that any equipment that has the "capacity to dial numbers without human intervention? and that can "dial thousands of numbers in a short period of time? renders such equipment an ATDS and thus subject to the TCPA?s prohibition against dialing wireless numbers. It?s the FCC?s use of the term "human intervention,? however, that provides a rationale in support of the contention that preview dialing would not be considered an ATDS - when preview dialing is used, a call is only placed when a human intervenes and makes a determination that the call will be made.
Telemarketing compliance is already difficult enough - why make it more so by adding preview dialing to the ATDS mix? It seems pretty straightforward - a human being is NOT an "automatic telephone dialing system.?