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In the United States, the Telephone Consumer Protection Act (TCPA) sets out rules governing how automated dialing systems (such as predictive dialers) can be used. In general, the TCPA prohibits using an (1) “automated telephone dialing system” (ATDS) or (2) prerecorded message to contact cell phones, and (3) prerecorded telemarketing messages to contact residential phones, unless the recipient has provided and not revoked “consent” to receive the call/text.
Be aware that the TCPA are not the only rules that govern predictive dialers. The Federal Trade Commission (FTC) also has rules of interest, including the National Do-Not-Call (DNC) Registry. Individual States also have rules governing the use of predictive dialers.
Automated Telephone Dialing Systems
The TCPA specifically limits the use of “automatic telephone dialing systems“(ATDS), and defines ATDS as dialing systems which have the capacity to dial numbers generated sequentially or randomly. If an ATDS is used to dial residential numbers, the called party must have provided express-written consent before they can be dialed. Until recently, the definition of ATDS was considered to be quite broad and likely covered most predictive dialers.
However, in April 2021 the US Supreme Court decided the Facebook vs. Duguid case and provided a narrow definition of what an ATDS is. The Supreme Court decided that for a predictive dialer or other dialing device to be considered an ATDS, it must utilize a random or sequential number generator to produce or store telephone numbers and then dial phone them. Most predictive dialers do not use random number or sequential number generators and arguably may not be considered ATDS' per the TCPA.
The U.S. 9th Circuit Court of Appeals (which traditionally has been pro-consumer in TCPA litigation) even further clarified the definition of ATDS after the Facebook Supreme Court ruling.
In its recent ruling in Borden v. eFinancial, LLC, No. 21-35746, —F.4th— (9th Cir., November 16, 2022), the 9th Circuit limited the meaning of ATDS even further, holding that telephone equipment “must generate and dial random or sequential telephone numbers under the TCPA’s plain text.” That is, the 9th Circuit made it clear that a phone system that simply generates some random or sequential number during the dialing process is not enough to be considered an ATDS under the TCPA.
Prerecorded messages and predictive dialers
The TCPA still prevents predictive dialers from leaving prerecorded messages on cell phones. Many companies that use predictive dialers scrub their lists using services which identify which numbers are cell phones and which numbers are landlines. The cell phones are then placed in a list that is manually dialed using a preview dialer.
This is particularly important when the outbound campaign leaves prerecorded messages for the called party. These rules particularly apply to the use of voice broadcast dialers and (more recently) to ringless voicemail campaigns.
Many States have further laws preventing the calling of cell phones so this practice of separating lists is important.
Bottom line – are predictive dialers TCPA compliant?
The answer to this question is a bit more clear after the Supreme Court decision… but there's no blanket “yes” answer to this as you will still need to discuss with your lawyer as well as your predictive dialer provider. The key question to ask your predictive dialer vendor is: does your dialer use a random or sequential number generator to produce or store telephone numbers and then dial phone them?
Further resources to understand TCPA and predictive dialers
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