Lenders doing business across regions need to be wary of how each state defines an autodialer, John Redding, partner at Buckley LLP, told Powersports Finance.
The Federal Communications Commission is currently revising the element of the Telephone Consumer Protection Act that defines what constitutes an autodialer, a device that automatically calls or sends messages to consumers. In the meantime, circuit courts are coming up with their own definitions.
In February, the Ninth Circuit ruled in Marks v. Crunch San Diego LLC that an autodialer is any device that stores numbers to be called, regardless of whether they are generated by random or sequential number generators. Under this definition, a smartphone might be considered an autodialer, Redding said.
“One of the other things that came out of Marks was that the TCPA includes all equipment that engages in automatic dialing, not just doing so without human oversight or control,” Redding said. “That’s another important distinction, because when we look at litigation and decisions that have happened around the country, frequently, one of the distinguishing factors between whether something is or is not an autodialer is whether there is human intervention required to basically dial the call.”
The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Meanwhile, the Third Circuit Court has taken an alternate approach, indicating that human intervention — in other words, requiring a person to trigger the call — is enough to deem the device a non-autodialer.
“Imagine I’m a powersports company doing business on a national basis, or I’m doing business on a regional basis but my footprint crosses multiple jurisdictions, how do I implement a single process?” Redding said. It is “equally important” for companies to have procedures and controls in place to ensure that they remain compliant to consumers’ requests to withdraw consent, he added.