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Your autodialer may be illegal!

If you have an outbound calling system or are looking to implement one, how does it stand up to the 2015 FCC Order on Autodialers? You need to understand if you system would be classified as an autodialer. You should seek your own legal counsel for an interpretation of this ruling however the following questions and answers on Acarda Outbound in relation to FCC’s GCC-15-72A1 may be helpful in your investigation.

What is FCC Declaratory Rule and Order GCC-15-72A1?

The June 18, 2015, FCC Declaratory Rule and Order GCC-15-72A1 can be found at https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order. Here, in particular I wish to look at paragraph 17 and 18 in the ruling which reads:

17. Given the scope of the Petitioners’ requests, we do not at this time address the exact contours of the “autodialer” definition or seek to determine comprehensively each type of equipment that falls within that definition that would be administrable industry-wide.  Rather, we reiterate what the Commission has previously stated regarding the parameters of the definition of “autodialer.”  First, the Commission found in its original TCPA proceeding that the “prohibitions of [section] 227(b)(1) clearly do not apply to functions like ‘speed dialing.’”   Second, the Commission has also long held that the basic functions of an autodialer are to “dial numbers without human intervention” and to “dial thousands of numbers in a short period of time.” How the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.

18. We do, however, acknowledge that there are outer limits to the capacity of equipment to be an autodialer.  As is demonstrated by these precedents, the outer contours of the definition of “autodialer” do not extend to every piece of malleable and modifiable dialing equipment that conceivably could be considered to have some capacity, however small, to store and dial telephone numbers—otherwise, a handset with the mere addition of a speed dial button would be an autodialer.   Further, although the Commission has found that a piece of equipment can possess the requisite “capacity” to satisfy the statutory definition of “autodialer” even if, for example, it requires the addition of software to actually perform the functions described in the definition, there must be more than a theoretical potential that the equipment could be modified to satisfy the “autodialer” definition.  Thus, for example, it might be theoretically possible to modify a rotary-dial phone to such an extreme that it would satisfy the definition of “autodialer,” but such a possibility is too attenuated for us to find that a rotary-dial phone has the requisite “capacity” and therefore is an autodialer.

Q1. What is an autodialer?

A1. There are several types of autodialers. An autodialer that randomly or sequentially dials a list of numbers to deliver a pre-recorded message to the recipient is referred to as a voice broadcasting autodialer, or a robocalling autodialer. This is a fully automated process without human intervention unless the called person was given the option to be transferred to a live person.

In some call centers a power dialer is used to dial ahead and find people for an agent to speak with. These autodialers wait until an agent is available and then dial out on multiple lines to find another person. More sophisticated autodialers, called predictive dialers, will start dialing even before an agent is ready and they use realtime analysis to determine when to start dialing and how many lines to dial out on in order to minimize the time an agent needs to wait for a new contact to speak with at the end of their current call.

Unfortunately the FCC order does not “address the exact contours of the ‘autodialer’ definition or seek to determine comprehensively each type of equipment that falls within that definition” (para. 17.); rather, they leave the question open ended to be determined on a case-by-case basis.

Q2. Is Acarda Outbound an autodialer?

A2. Acarda Outbound has no predictive dialer ability and should not be considered to be an autodialer. It functions as a Call Manager where agents can make notes on each call and record call outcomes. The Acarda Outbound Agent displays contact details like a Contact Management System and then when the agent clicks a button the telephone number is speed-dialed in a similar way to the speed-dialer capability of a memory dial desktop telephone.

Q3. What is a speed-dialer?

A3. Many telephones will have the ability to program in a telephone number for a numerical key on the telephone allowing the caller to speed dial by clicking the pre-assigned key to dial out. Also, many softphone products allow you to speed dial out a number from a contact directory by simply clicking one key. A speed dialer is equipment, hardware or software, which allows the user to quickly dial out a telephone number without needing to dial the individual digits of the telephone number directly.

Q4. Is speed-dialing permitted?

A4 Paragraph 17 refers to the 1992 TCPA Order, 7 FCC Rcd at 8776, paragraph 47 which reads “prohibitions of [section] 227(b)(1) clearly do not apply to functions like ‘speed dialing.’”  This suggests that while autodialers are prohibited, speed-dialers that dial out one number at a time are permitted.

Q5. Is Acarda Outbound a speed-dailer?

A5. The dialing function in the Acarda Outbound Agent is a minor part of Acarda Outbound’s feature set.  In the agent software a dial out is initiated when the agent clicks the appropriate button in their toolbar and then it only dials out a single telephone number. Once dialed, the agent must determine the call outcome and select to call it back if it is engaged or no answer or have a conversation and then make notes on the call.

Q6. Can Acarda Outbound “dial numbers without human intervention”?

A6. Paragraph 17 reads that “the Commission has also long held that the basic functions of an autodialer are to ‘dial numbers without human intervention’ and this further strengthens the case that Acarda Outbound is not an autodialer. Acarda Outbound’s primary design purpose is to help live agents make more productive calls.  Acarda Outbound cannot function as an autodialer and must have a real person to initiate each and every call that is made.

Q7. Does Acarda Outbound have the “capacity” to become an autodialer?
A7. Unless an agent presses a button in the Acarda Outbound toolbar the agent will never place a dial out. The Acarda Outbound Server cannot push out a lead to an agent unless the agent first clicks a button to seek the next record. This process is fundamental to the design of the software. Even with requested call backs, they do not just appear in the agent screen unless the agent clicks a button for the next call. When they do so the server looks for pre-scheduled call backs and if there is one for that agent it will be sent to the agent otherwise it will send a new record to call. It is not technically feasible to modify the agent software to become an autodialer without re-designing the entire lead management system to function as an autodialer and then you would have an entirely different product. Further, the dialing interfaces, usually 3rd-party softphones or hardware modems, are not sophisticated enough to return the call progress analysis that would be required for autodialer functionality, the dialing interfaces do not have the capacity to be autodialers.

Please seek your own legal counsel to for an interpretation of FCC/ TCPA and other regulations to determine if use of Acarda Outbound is prohibited in your country and state. Acarda Sales Technologies Limited provides no guaranteed, no warranty as to its compliance, nor does Acarda accept any responsibility for inappropriate use or illegal use of Acarda Outbound.