One of the particularly unusual and frustrating aspects of the Telephone Consumer Protection Act (TCPA) is that it places greater regulatory emphasis on the technology used to dial phone calls than it does on the content of those calls. TCPA litigation often turns on determinations regarding dialing technology, as does a significant portion of case law and Federal Communications Commission (FCC) rulemaking.

The TCPA requires that calls made with an automatic telephone dialing system (ATDS) be made with the consent of the called party. For marketing calls, prior express written consent is required. For informational calls, prior express consent is required. ATDS calls made to cell phones without proper consent can result in TCPA violations that carry penalties of $500-per-violation or $1,500-per-willful-violation.

The TCPA defines an ATDS 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.” Over time, different courts and the FCC have interpreted this definition differently but in April 2021, the Supreme Court’s decision in Facebook v. Duguid set a nationwide precedent for a narrow, statutory interpretation of the definition.

The TCPA is not the only source of calling risk. Calls placed to phone numbers on the Federal Do Not Call (DNC) Registry can result in enormous penalties and fines. Additionally, nearly every state has some form of state-level telemarketing regulations.

Different calling methods provide different levels of risk. For example, there is almost no TCPA or DNC risk when dialing manually, making it the safest method by far.

This guide gives you an overview of different dialing methods while answering certain questions, such as:

• Which dialing methods are the riskiest for marketers?
• What recent court cases provide relevant guidance on the riskiness of each dialing method?

Finally, we assign a risk score to each of the 7 riskiest dialing methods for your reference.