The Federal Communications Commission is currently accepting public comments on several issues important to the future interpretation of the Telephone Consumer Protection Act in light of the decision by the U.S. Court of Appeals for the District of Columbia in ACA International v. FCC, which was released in March of this year and which struck down several parts of the FCC’s 2015 Omnibus TCPA Order.
Opening comments are due on June 13, 2018, and reply comments are due on June 28, 2018. It is also possible to schedule time to meet with staff at the FCC to share your views. The invitation for public comment provides an important and unique opportunity for platform providers, marketers, businesses, and other companies impacted by the TCPA to help shape the statute’s future and limit undue risk. We encourage companies to take this opportunity to weigh in on these important issues.
The FCC’s request for public comment touches on three areas critical for companies that send text messages or make autodialed calls to consumers: (1) the definition of “automatic telephone dialing system”; (2) how the TCPA applies to telephone numbers that have been assigned to a new user after the original user provided consent to receive calls or text messages (so-called “reassigned” numbers); and (3) revocation of consent.
Definition of Automatic Telephone Dialing System:
The FCC is seeking comment on the appropriate parameters for the definition of “automatic telephone dialing system” (ATDS). The contours of this definition are important because calls and text messages made using an ATDS are subject to the consent requirements of the TCPA. The TCPA defines an automatic telephone dialing system 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’s 2015 TCPA Order interpreted 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,” which was so expansive that the D.C. Circuit said it had “the apparent effect of embracing any and all smartphones.” As a result, in its March 2018 decision, the D.C. Circuit struck down the FCC’s action. The FCC is now asking several questions about the ATDS definition in light of the D.C. Circuit’s decision, including how to interpret the word “capacity” in the ATDS definition and what functions a device must be able to perform to qualify as an ATDS.
Reassigned Wireless Numbers:
The FCC is seeking comment on how to treat calls to reassigned wireless numbers under the TCPA. The D.C. Circuit struck down as arbitrary and capricious the Commission’s one-call safe harbor for calls made to reassigned numbers because there was no clear way for a party making an automated call or text message to know that the number has been assigned to a new user. Furthermore, the court concluded that, without this safe harbor, the FCC may not have chosen to impose liability for calls made to reassigned numbers. The FCC is now asking whether it should interpret the phrase “called party” to mean: (1) the person the caller expected to reach, (2) the party the caller reasonably expected to reach, or (3) the person actually reached (meaning the wireless number’s present-day subscriber after reassignment). The FCC seeks comment on whether a new safe harbor is necessary.
Revocation of Consent:
The third major issue the FCC seeks comment on is about the ability of consumers to revoke their consent to continue receiving automated calls and text messages. The issue of revocation of consent and what means of revocation a company must support has been a topic of much discussion—and litigation—the past few years. In its March 2018 decision, the D.C. Circuit agreed with the FCC’s 2015 decision that “a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller,” but noted that the duty to honor reasonable opt-out requests was not the same as requiring a company to support any means of opting out that a consumer can think of. The D.C. Circuit expressly concluded that “callers . . . have no need to train every retail employee on the finer points of revocation.” The FCC is now asking for comment on what opt-out methods would be sufficient and easy enough 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.” In requesting comments on this issue, the Commission seeks to explore whether certain opt-out methods should be standardized, such as pushing a standardized code on a touch tone phone (such as “*7”), offering opt-out through a website, or responding “STOP” to text messages. The FCC also seeks comment on whether a combination of methods must be made available to consumers.
In our view, each of the issues set forth above have fueled significant disagreement and spawned expensive litigation. The uncertainty of the law regarding these issues has been repeatedly used by TCPA Plaintiffs to file claims against companies that have made every reasonable effort to remain in compliance with the TCPA. For this reason, we are pleased to see the FCC inviting public comment on these issues and hope that the Commission’s inquiry leads to clear rules that protect well-intentioned companies from needless litigation.
We encourage you to participate in the process and help ensure that the FCC reaches the right outcomes. The Commission must hear from industry participants, including platform providers and companies that use text messages and autodialed calls to reach consumers, in order for the FCC to have the record necessary to implement common sense reforms.
Please contact any member of our team to file comments or arrange meetings with the FCC.