A phone is considered an ATDS if it has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such number. This definition applies regardless of whether or not the capacity is actully being used at the time of the call.
The short answer is YES, in that it "has the capacity to store or produce telephone numbers to be called." The broad intrepretation of capacity is what causes such a wide range of devices to be considered an ATDSs.
FCC Commissioner Michael O’Rielly spoke out against the autodialer ruling in his statement during the FCC’s open meeting on June 18, 2015, when he commented:
"Indeed, the new definition is so expansive that the FCC has to use a rotary phone as an example of a technology that would not be covered because the modifications needed to make it an autodialer would be too extensive."
Prior express written consent is an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered. The rules further state that this consent may not be a required condition of purchasing any property, goods, or services.
That depends. If you are ONLY calling to discuss an existing product or service your customer already has purchased then, no, you do not need express written consent to call an existing customer. HOWEVER, if during that conversation your discussion includes any type of marketing discussion then you are now required to have express written consent. This would include any discussion regarding additional products or services you may have to offer your customer or any changes to the services you already provide.
Great! Then take the time to get their consent in writing to ensure you have fulfilled the requirement for having express written consent. Without the express written consent, you are still at risk when "marketing" to that customer even if they have given you verbal permission to call them on their cell phone.
The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message.