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Automatic Telephone Dialing System

What are the risks of peer-to-peer texting under the TCPA?

The Federal Communications Commission (FCC) authority says that placing a manual call or a sending manual texts does not count as making use of an Automatic Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act (TCPA). However, because peer-to-peer texting can be one-to-one, or in some cases, one-to-many, there is some debate as to whether those texts count under the definition of an ATDS. Generally, as long as the consumer is requesting to be contacted and you only ever respond to the consumer, it should fall under the same rationale as on-demand messages.

What is vicarious liability?

Vicarious liability is defined as an attachment of responsibility to a party for harm or damages caused by another party in a lawsuit or civil action.

It is a common practice for many businesses to market their products through the use of independent sales forces and lead aggregator websites. While these can be great sources for obtaining fresh leads, they can also be a trap for Telephone Consumer Protection Act (TCPA) litigation. 

Are there TCPA exemptions for political campaigns?

Political campaigns get a small amount of wiggle room when making calls or sending texts using an Automatic Telephone Dialing System (ATDS). Calls to landlines numbers do not require consent and it is not required to suppress numbers against the National Do Not Call (DNC) Registry. However, calls or texts to wireless numbers require prior express consent.

Further Reading

Are there TCPA exemptions for healthcare providers?

The Federal Communications Commission (FCC) allows two exemptions under the Telephone Consumer Protection Act (TCPA) for healthcare providers. 

Healthcare Messages (The “Health Care Rule”) 
Healthcare providers are allowed to make calls to residential landlines from a Health Insurance Portability and Accountability (HIPPA)-covered entity, including its business associates, using an artificial or prerecorded message to deliver a healthcare-related message without the consent of the called party. 

Are there TCPA exemptions for financial institutions?

Financial institutions are sometimes exempt from the Telephone Consumer Protection Act’s (TCPA) prohibition on the use of Automatic Telephone Dialing Systems (ATDS) when they send time-sensitive, voice or text messages which address financial issues related to the customer’s account, so long as no part of the message could be considered marketing.

In order to exercise the exemption for financial institutions, some basic rules must also be followed:

How do I avoid a TCPA lawsuit?

The best practices for avoiding Telephone Consumer Protection Act (TCPA) violations and the attendant lawsuits are as follows:

Make Sure You Have Clear Consent
In order for a court to proceed with a class action, the class must first be certified. When it comes to the TCPA, if the defendant can provide evidence of consent procedures, and prove consent for the individual plaintiff, the class as a whole, or a subset of the class, then the class certification may be denied.

What is an automated text message?

An automated text message is a text message sent to a consumer or consumers through the use of an automated text messaging platform. Regardless of whether the message itself is manually or automatically generated, it is treated as an automated text message if an autodialer platform is used to deliver the message.

The courts have been unanimous in the viewpoint that a call is a text and a text is a call. Automated text messages should be treated exactly like calls placed using an autodialer and the same consent rules should be observed.

What is an avatar autodialer?

Also known as “soundboard technology,” avatar technology was described by the D.C. District Court of Appeals as a technology that “enables telemarketing agents to communicate with consumers over the phone by playing prerecorded audio clips instead of using the agent’s live voice. The agent can choose a prerecorded clip to ask questions or respond to a consumer while retaining the ability to break into the call and speak to the consumer directly. Soundboard also enables agents to make and participate in multiple calls simultaneously.”

What is a robocall?

An autodialer with a prerecorded message (commonly referred to as a “robocall”) automatically dials a phone number and waits for a live answer. Upon answer, a prerecorded message will play. If the consumer is then prompted to interact with the system by pressing buttons, this is known as interactive voice response. There is normally a delay between the consumer answering and the connection to the prerecorded message.