FCC SEEKS COMMENTS WITH RESPECT TO INTERPRETATION OF THE TCPA
May 17, 2018
On May 14, 2018, the Federal Communications Commission (“FCC” or “Commission”) released a Public Notice seeking comment regarding the “interpretation and implementation of the Telephone Consumer Protection Act (“TCPA”), following the recent decision of the U.S. Court of Appeals for the District of Columbia in ACA International v. FCC.” Specifically, the Public Notice calls for input regarding the following issues:
- What Constitutes an “Automatic Telephone Dialing System”? The TCPA defines an automatic telephone dialing system (“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.” The Commission previously had formulated a very expansive interpretation of the term “capacity,” such that many commenters asserted that even the average smartphone could be considered an ATDS under the Commission’s rules. The D.C. Circuit rejected this definition as “considerably beyond the agency’s zone of delegated authority.” As such, the Commission now seeks comment on how to interpret “capacity” in light of the court’s guidance.
- How to Treat Calls to Reassigned Wireless Numbers Under the TCPA. The TCPA contains an exception for calls “made with the prior express consent of the called party” from its prohibitions. However, the D.C. Circuit vacated the Commission’s previous interpretation of the term “called party” as arbitrary and capricious. Thus, the Commission now seek comment on how to interpret the term “called party” for calls to reassigned numbers. For example, should the “called party” refer to “the person the caller expected to reach,” “the party the caller reasonably expected to reach,” or “the person actually reached” (i.e. the wireless number’s present-day subscriber after reassignment)?
- How a Called Party may Revoke Prior Express Consent to Receive Robocalls. The FCC also seeks comment on what opt-out methods would be sufficiently clearly defined and easy to use such that “any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.”
- Petitions for Reconsideration. In addition to the above, the FCC seeks comments with respect to several pending petitions for reconsideration on more esoteric TCPA issues (e.g., the treatment of calls to collect debts owed to or guaranteed by the federal government) and with respect to the relationship between federal government contractors and the collection of government debt.
Comments are due by June 13, 2018 and reply comments are due by June 28, 2018. The full text of the Public Notice can be found here. The Commission’s interpretation of the TCPA will have a significant impact on the amount of flexibility telemarketers and other call originators have in conducting business in the future. The definition of an ATDS, for example, will have a direct effect on how future calls are dialed and classified.
If you would like to file comments and/or reply comments in this proceeding, or if you are in need of assistance with TCPA litigation or compliance, please contact please contact any of the attorneys in our Telecommunications Practice Group.
This Utilities and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.