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From the Archive: Don’t Misdial. . . The Strange Story of How Your Smartphone Became An Autodialer (and why that could end up costing you a lot of dough)

(First Published Aug. 6, 2015)You probably never worry about violating federal law when you dial a phone number on your smartphone. But then again you probably never worry about “dialing” numbers from your smartphone at all anymore.

It seems that we are well past digit-by-digit phone number entry these days. Our clever little personal devices are capable of returning calls or dialing numbers scraped from a text or HTML document at a finger stroke. Indeed, with the slightest bit of programming know-how you can code an App to dial all of your friends, or even all of the numbers in the United States, in rapid-fire succession, on an entirely automated basis, right from the palm of your hand (or you could just download one of the numerous applications on the market that already claim to offer these services).

But these technological advances have not gone unnoticed by the Federal Communications Commission (“FCC”) and a new ruling adopted by the FCC dramatically alters (read: limits) the ways you can lawfully use your smartphone.

On July 20, 2015 the Commission issued its long-awaited Omnibus ruling clarifying the Telephone Consumer Protection Act (“TCPA”). Hidden within the densely-worded eighty-one page Declaratory Order (embedded below) is a rather remarkable ruling: smartphones are autodialers—automated telephone dialing systems or “ATDS” for short—governed by the TCPA.

This ruling is very big deal and for a number of reasons.

Let’s start with the expensive one—the TCPA carries a $500.00 per violation price tag. As your smartphone is suddenly an “ATDS” governed by the TCPA, using the device to call a phone number assigned to a wireless carrier without the “express consent” of the called party is now a violation of federal law. Call somebody on their cell phone that has not expressly consented to the call and you now owe that somebody at least $500.00.  That’s right, five hundred smackeroos.

I know what you are thinking—it cannot be as simple as that. Surely there is more to it. But there isn’t. And things get even stranger.

Next consider that there is no defense of “I dialed the number accidentally” or “I thought they wanted the call.” The TCPA is a strict liability statute. You call someone without their express prior permission from your smartphone and you are liable for it. No muss, no fuss.

Or perhaps you’ve heard that the TCPA only applies to telemarketing calls, so it would not apply to you unless you were, for instance, goading your friends into buying the next Call of Duty installment. But you’ve heard wrong. The TCPA is a content-neutral statute and applies equally to all calls to a wireless number, regardless of the purpose of the call, as some members of Congress just found out the hard way (Omnibus Ruling ¶123). (See FCC TCPA FAQ on Tele-Town Halls embedded below [“Q: Doesn’t the TCPA exempt political or elected officials’ calls? A: No.”]).

And before you pronounce that this bizarre ruling cannot possibly apply to your smartphone, it does. It does not matter that you’ve never used or considered using one of those nefarious autodialer Apps to harass your friends or neighbors. There is more than a “theoretical potential that [your smart phone] could be modified” to operate as an ATDS someday and that—says the FCC—is all that matters. (Omnibus Ruling ¶ 18.) Stated another way, autodialing is a “potential functionalit[y]” of your easily-configurable smart phone, which is good enough to qualify the device as an autodialer even if it is not “currently configur[ed]” to randomly dial phone numbers. (Omnibus Ruling ¶ 16.)

That brings me to the second reason this ruling is a very big deal. The FCC has just clarified that equipment is presently governed by the TCPA if it has the capability of being modified to serve as an autodialer in the future. Let that sink in. As one Commissioner pointed out in dissent, that’s like the FAA regulating automobiles because with enough modifications they might take off and fly away like airplanes.

Perhaps worst of all, however, the FCC has couched its ruling as a “clarification” of existing law—giving the ruling immediate and retroactive impact. That means not only are you liable for all calls you may errantly place in the future, you have also been made retroactively liable for all calls you have made going back four years. And, once again, since the TCPA is a strict liability statute the fact that you had no idea your conduct could possibly be violating the statute—and let’s be honest, who did?—the “extreme and utter unfairness of the situation” likely offers no defense. (Certainly not Donald Trump who famously just handed out Lindsay Graham’s cell phone number at a crowded campaign rally and thereby invited massive TCPA liability upon his supporters, and possibly himself.)

So what’s going on here? Since when does a federal agency take it upon itself to regulate imaginary threats posed by ubiquitous personal devices? And why would the Federal Communications Commission recommend that we all go back to using rotary-dial phones to safeguard ourselves from TCPA exposure? (Omnibus Ruling ¶ 18.) And why would the Telephone Consumer Protection Act, provide a tool to punish consumers for using their telephones?

The answer, as distilled from Commissioner Pai’s brilliant dissent, lies in the Commission’s lack of useful tools to regulate “autodialed” calls to cell phones. Indeed, Congress has only ever given the agency one—the TCPA. But as it turns out, that’s not much of an arsenal. The statute was drafted way back in 1991 and, on its face, governs only very limited technology —devices with the “capacity” to operate using a “random or sequential number generator.” By and large, however, modern-day dialers do not just fire off messages haphazardly to random numbers. Instead they target specific individuals at specific phone numbers using automated technologies to assure efficient transmission of information to consumers. Obviously the TCPA was never designed to prohibit the use of these devices. If the FCC applied the statute as written, therefore, the TCPA would not be applicable to most modern dialing equipment and the Commission would have to go back to regulating the internet, rather than cracking down on “autodialed” phone calls to consumers.

But the Commission apparently believes it has a mandate to regulate modern-day dialer use—even without express Congressional authority to do so. As such, the Commission did the only thing it felt it could do to keep the TCPA relevant and—despite the bizarre and far-reaching consequences of the ruling—defined the term “capacity” to mean “future possibility.” By doing so the Commission expanded the reach of the TCPA as far as the eye can see, assuring itself a limitless grant of authority to regulate ever-evolving dialing technologies. Now, any piece of dialer equipmentis governed by the TCPA so long as it can be converted into an autodialer “through [future] software changes or updates.” (Omnibus Ruling at FN 63.)   As demonstrated in the second paragraph of this article, this definition now plainly includes that piece of sophisticated dialing equipment sitting right in your pocket—your smartphone.

In fairness to the Commission, it probably did not want to sweep smartphones within the statute’s purview, it just could not avoid doing so without depriving itself of its only tool to regulate calls to cell phones. Unfortunately for all of us, however, the TCPA is not just enforced by the FCC—which is extremely unlikely to sue a private individual for the typical use of a smartphone—the statute is also privately enforced through ordinary lawsuits brought in courts all over the country, every single day.  That means there is nothing preventing an onslaught of new litigation against people—just like you—for using smartphones—just like yours—to make seemingly innocuous calls to wireless numbers.

Notably, the Commission is well aware of the impact its ruling will have on smartphone usage, but  seems inclined to trust the Plaintiff’s bar not to run amuck with its new-found powers. In one telling paragraph, the Commission justifies its ruling by noting that there have been no TCPA lawsuits involving the normal use of smartphones to call wireless numbers to date. (Omnibus Ruling ¶ 21.) As Commissioner Pai’s dissent deftly points out, however, the Commission “has opened the door wide” to a new species of TCPA lawsuits and cannot expect “restraint among those who would have a financial incentive to walk through it.” (See Commissioner Pai’s Dissent at n. 581).  Whereas “no one had thought the TCPA prohibited the ordinary use of smartphones” previously, now that the Commission has clarified otherwise, “the lawsuits are sure to follow.” (See Commissioner Pai’s Dissent at p. 116).

So the next time you whip out your smartphone to place a call be sure to ask yourself whether it’s worth it. Call a cell number without express consent and you could wind up in someone’s pocket for $500.00. Or maybe you should just avoid the risk altogether and pick up one of those nifty rotary phones the kids are crazy about these days. Thanks FCC.

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