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May 2018

Calling all TCPA Critics: Hurry Up – Time is Running Out to Submit Comments to the FCC Regarding Interpretation of the TCPA Following the D.C. Circuit’s ACA Int’l v. FCC Decision

The FCC recently issued a public notice seeking comment on several issues concerning interpretation and implementation of the Telephone Consumer Protection Act (“TCPA”) following the decision of the D.C. Circuit Court of Appeals in ACA Int’l v. FCC, No. 15-1211, Doc. No. 1722606 (D.C. Cir. Mar. 16, 2018).  I previously reported on the decision here. Time is running out to submit comments. The FCC set a comment date of June 13, 2018 and a reply comment date of June 28, 2018. 

The FCC seeks comment on the following TCPA issues:

  1.   What is an ATDS?

The FCC seeks comment on what constitutes an “automatic telephone dialing system” or ATDS.  The TCPA defines ATDS 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.”  47 U.S.C. § 227(a)(1).  The D.C. Circuit set aside the FCC’s interpretation in its 2015 Order of the term “capacity” to include a device even if, for example, it requires the addition of software to actually perform the functions described in the definition – an expansive interpretation having the apparent effect of embracing smartphones. 

The FCC seeks comment on how to interpret “capacity.”  Specifically, how much user effort should be required to enable the device to function as an ATDS?  Does equipment have the capacity if it requires the simple flipping of a switch?  What if the addition of software can give it the requisite functionality?  What if it requires essentially a top-to-bottom reconstruction of the equipment?  What kinds of telephone equipment should qualify as an ATDS?  Significantly, given the Court’s guidance that the FCC’s prior interpretation had an “eye-popping” sweep, the Commission seeks comment on how to more narrowly interpret the word “capacity.”

The FCC also seeks comment on the functions a device must be able to perform to quality as an ATDS.  The Court found it difficult to square the FCC’s explanation that a basic function of an ATDS is to dial numbers without human intervention, yet declined to clarify that a dialer is not an ATDS unless it has the capacity to dial numbers without human intervention.  Thus, how “automatic” must dialing be for equipment to qualify as an ATDS?  Does the word “automatic” envision non-manual dialing of telephone numbers?  Must such a system dial numbers without human intervention?  Must it dial thousands of numbers in a short period of time and, if so, what is a short period of time?

The FCC seeks further comment on the TCPA provisions regarding a random or sequential number generator. Specifically, if equipment cannot itself dial random or sequential numbers, can that equipment be an ATDS?

The FCC also seeks comment on whether the bar against making any call using an ATDS applies only to calls made using the equipment’s ATDS functionality.  Specifically, if a caller does not use equipment as an ATDS, does the statutory prohibition against making calls using an ATDS apply? 

Lastly, the FCC seeks comment on a petition for declaratory ruling by the US Chamber Institute for Legal Reform and several other parties asking the Commission to clarify the definition of ATDS.

  1. How do you treat reassigned wireless numbers under the TCPA?

The FCC seeks comment on the treatment of reassigned wireless numbers under the TCPA. The TCPA carves out calls made with the prior express consent of the “called party.” The Court vacated as arbitrary and capricious the Commission’s interpretation of that term, including the one-call safe harbor for callers to detect reassignments.  The FCC seeks comment on how to interpret the term “called party” for calls to reassigned numbers.  Does it refer to the person the caller expected to reach?  Does it refer to the party the caller reasonably expected to reach?  Does it refer to the person actually reached, the wireless number’s present-day subscriber after reassignment?  Or does it refer to a customary user (e.g., a relative or person on a family plan) versus the subscriber himself?  Moreover, the FCC seeks comment on whether it should maintain its reasonable-reliance approach to prior express consent.  Finally, the FCC seeks comment on whether a reassigned numbers safe harbor is necessary and, if so, what is the statutory authority for such a safe harbor?

  1. What is a reasonable means for a called party to revoke consent?

The FCC seeks comment on how a called party may revoke prior express consent to receive robocalls. The Court held that a person may revoke his consent through any reasonable means clearly expressing a desire to receive no further calls from the calling party. The FCC seeks comment on what opt-out methods would be sufficiently and clearly defined and easy to use for unwanted calls. Is telling a live caller to stop calling or offering website opt-outs sufficient?  Would simply replying “stop” to calls and texts be sufficient?  Are there other sufficient methods that are easy to use and clearly defined?

  1. Are contractors acting on behalf of the government “persons” under the TCPA?

Given the Court’s decision on various TCPA issues, the FCC seeks renewed comment on two pending petitions for reconsideration of the Commission’s 2016 Broadnet Declaratory Ruling.  First, the National Law Consumer Center requests that the FCC reconsider its interpretation of “person” and clarify that federal government contractors are “persons” under the TCPA, regardless of their common-law agent status.  Second, the Professional Services Council requests that the FCC clarify that contractors acting on behalf of the federal government are not “persons” under the TCPA. The FCC seeks comment on whether contractors acting on behalf of federal, state and local governments are “persons” under the TCPA.

  1. Further comment on the 2016 Federal Debt Collection Rules and interplay between the Broadnet decision and the Budget Act amendments.

The FCC seeks comment on the interplay between the Broadnet decision and the Budget Act amendments.  Specifically, do the rules adopted in the 2016 Federal Debt Collection Rules (“Rules”) apply to federal contractors collecting federal debts?  Do persons who are not federal contractors collect federal debts?

The FCC also seeks renewed comment on Great Lakes Higher Education Corp. et al.’s pending petition for reconsideration of the Rules wherein Great Lakes seeks reconsideration of various issues, including the applicability of the TCPA’s limits on calls to reassigned wireless numbers.

Whether you like or dislike the TCPA, the deadline to file comments on these very important TCPA issues is fast approaching, so hurry up and get them submitted.

Consumer Protection Litigation

Thomas C. Blatchley



Consumer Protection Litigation

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