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Nervous System: Evaluating TCPA Liability in the Actual Wild West

David Kalat

March 1, 2018

David Kalat writes about the difference between the PBX and autodialer, their roles in litigation through the history of telephony, and the TCPA.

 

Within hours after the FCC issued the 2015 TCPA Omnibus Declaratory Ruling and Order, lawyers for the Association of Credit and Collection Professionals (ACA) International filed a petition for review seeking clarity on several crucial issues. Years later, the world of TCPA litigators is still collectively holding its breath, awaiting a ruling to answer an age-old question: just what is an autodialer?

To put this in context: in 1991 Congress passed the Telephone Consumer Protection Act (47 U.S.C. § 227, “TCPA”) as a shield to protect American consumers from invasive, harassing advertising. With statutory damages of $500 per offending call or text, or $1,500 if the violation is found to be willful, a class action brought under the TCPA can potential add up to a multimillion-dollar liability.

The TCPA makes it unlawful to, among other things, use an “automatic telephone dialing system” or an artificial or prerecorded voice message to make any nonemergency call to a cellular telephone service without the prior express consent of the called party. Establishing whether the technology used to place the calls is an autodialer can either create or dissipate TCPA liability.

Complications arise because the TCPA defines an autodialer 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” (emphasis added). The FCC has repeatedly stated its interpretation that the term “capacity” refers to not just the actual present configuration of the machine, but also potential future configuration. This is one issue that ACA petitioned for judicial review.

This state of affairs poses a real risk of misidentifying some piece of telephony hardware and/or software as an autodialer simply because its function, capabilities, or use are misunderstood or misinterpreted. Consider the lowly PBX, a piece of telephony equipment found in some form in many business environments. In one TCPA case, Freyja v. Dun & Bradstreet, the plaintiffs pointed to the presence of the PBX as if its existence alone was evidence of “capacity.” For example, the pleadings argued, “A PBX system can be configured in numerous different ways” and that “[t]he PBX is essentially another computer or server.”

Despite its 21st-century sounding name, the PBX is nothing new—the first one was installed in 1879, and although its technological implementation has evolved over the last 138 years, nothing about its primary purpose or functionality has. To understand the PBX, and why it is not an autodialer, it helps to take a quick tour through the history of telephony.

If you were a phone customer back in the late 1800s when telephones were first invented, it was not an option to get just a single phone. Your contract with the telephone company was for two phones and the cable to run between them. These were leased to you—the only thing you bought was the right to make calls between the two units. Over time, a web of phone connections evolved to allow telephone companies to change the business model. The new approach allowed users to lease just one phone set that connected to the network of existing lines. The phone company operated a switchboard, called a central branch exchange, at which operators manually connected wires on an on-demand basis to establish temporary connections between callers and recipients.

The central branch exchange only allowed connections between dedicated terminals, however. Some businesses and larger organizations wanted the flexibility to use a larger number of actual phones than they had subscriptions to phone lines. Since not everyone would be on the phone at the same time, it could be possible to serve these individual extensions with many fewer lines.

On September 18, 1879, the Dayton Bell Telephone Company in Dayton, Ohio, installed a separate switchboard at the Old Soldier’s Home, allowing that organization to serve seven individual phone extensions from just one line connecting the main, public exchange. This switchboard was a local, or private, branch of the exchange. For short, they called this private branch exchange a “PBX.” By 1902, AT&T was leasing out a standardized PBX system to other organizations seeking to realize the same advantages.

In subsequent decades, businesses and larger organizations routinely maintained their own PBX switchboards. The job of switchboard operator became a career for many women—Emma Nutt became the first female switchboard operator in September 1878.

Modern PBX systems have taken the functions once performed by Emma Nutt and the human operators that followed after her and migrated them into boxes of hardware and software, but the essential function remains to optimize incoming and outgoing calls across available resources.

The PBX is in many ways the telephony equivalent of a company mail room. It serves as a localized model of an outside system and enables that system to interact more granularly with the needs of the business. The US Postal Service may only send a mail carrier to the company site to send and receive mail from the entire building; inside the building, the company may operate its own mail room to individually deliver letters and packages to each office and cubicle.

Some PBX manufacturers offer add-on autodialer functionality, so there are instances where a PBX has an autodialer component. This is analogous to a clock radio—just because some clocks come with radios installed does not mean that clocks and radios are inherently related technologies, nor does it imply that all clocks have radios attached. An autodialer places calls; a PBX interfaces between the phone environments of a business and the phone companies. These are separate functions, performed by different technologies, and in many cases users of autodialers will have purchased their autodialer from an entirely different vendor than the PBX system.

Readers of a certain age may be reminded of comedian Lily Tomlin’s iconic character Ernestine. The sarcastic switchboard operator that Tomlin made famous on TV in the late 1960s and 1970s would likely have been upset to lose her job to a machine—but she would have been even more upset to be told she was a machine.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC or its other employees and affiliates.

Read the first installment in the series, “The Story of the First White Hat Hacker.”

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David Kalat

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Chicago