Following a recent petition joined by the Insights Association, the FCC seeks comments on how to finally reform the TCPA. Action could come as soon as late summer.

The Federal Communications Commission (FCC) responded to the recent DC Circuit Court decision, which rejected much of the FCC’s 2015 Telephone Consumer Protection Act (TCPA) rules, and the recent petition on clarifying the definition of an autodialer, by seeking public comment, in short order, to help prepare a rewrite of the agency’s TCPA rules.

The TCPA dominos are starting to fall rapidly.

The FCC seeks public comments (in CG Docket Nos. 18-152 and 02-278) on:

  1. “what constitutes an automatic telephone dialing system”;
  2. “how to treat calls to reassigned wireless numbers under the TCPA”;
  3. “how a called party may revoke prior express consent to receive robocalls”;
  4. whether or not government contractors are "persons" under the TCPA, and thus whether or not they are liable for TCPA violations; and
  5. if the FCC's 2016 federal debt collection rules need to be updated.

Comments are due to the FCC by June 13, and reply comments are due by June 28. That aggressive comment schedule means that the FCC, if it so chooses, could render new TCPA rules as soon as late summer.

  1. The FCC wants comments on “what constitutes an ‘automatic telephone dialing system.’ ”

“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 had 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’ —an expansive interpretation of ‘capacity’ having the apparent effect of embracing any and all smartphones. The court set aside this interpretation, finding the agency’s ‘capacious understanding of a device’s ‘capacity’ lies considerably beyond the agency’s zone of delegated authority.' “

The FCC wants to know “how to interpret ‘capacity’ in light of the court’s guidance. For example, how much user effort should be required to enable the device to function as an automatic telephone dialing system? Does equipment have the capacity if it requires the simple flipping of a switch? If the addition of software can give it the requisite functionality? If it requires essentially a top-to-bottom reconstruction of the equipment? In answering that question, what kinds (and how broad a swath) of telephone equipment might then be deemed to qualify as an automatic telephone dialing system?8 Notably, in light of the court’s guidance that the Commission’s prior interpretation had an ‘eye-popping sweep,’ we seek comment on how to more narrowly interpret the word ‘capacity’ to better comport with the congressional findings and the intended reach of the statute.”

Insights into “the functions a device must be able to perform to qualify as an automatic telephone dialing system” are also sought by the FCC. “Regarding the term ‘automatic,’ the Commission explained that the ‘basic function[]’ of an automatic telephone dialing system is to ‘dial numbers without human intervention’ and yet declined to ‘clarify[] that a dialer is not an [automatic telephone dialing system] unless it has the capacity to dial numbers without human intervention.’ As the court put it, ‘[t]hose side-by-side propositions are difficult to square.’ The court further noted the Commission said another basic function was to ‘dial thousands of numbers in a short period of time,’ which left parties ‘in a significant fog of uncertainty’ on how to apply that notation. How ‘automatic’ must dialing be for equipment to qualify as an automatic telephone dialing system? 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? If so, what constitutes a short period of time for these purposes?”

The DC Circuit Court decision noted that “the 2015 ruling indicates in certain places that a device must be able to generate and dial random or sequential numbers to meet the TCPA’s definition of an autodialer, [and] it also suggests a competing view: that equipment can meet the statutory definition even if it lacks that capacity.” The court decision explained that the FCC can’t, “consistent with reasoned decisionmaking, espouse both competing interpretations in the same order.”

As a result, the FCC asks: “If equipment cannot itself dial random or sequential numbers, can that equipment be an automatic telephone dialing system?”

The FCC also asked if the ban on making any call using an autodialer applies only to calls made using that device’s autodialer functionality. “If a caller does not use equipment as an automatic telephone dialing system, does the statutory prohibition apply? The court also noted that adopting such an interpretation could limit the scope of the statutory bar: ‘the fact that a smartphone could be configured to function as an autodialer would not matter unless the relevant software in fact were loaded onto the phone and were used to initiate calls or send messages.’ Should we adopt this approach? More broadly, how should we interpret these various statutory provisions in harmony? We also seek comment on a petition for declaratory ruling filed by the U.S. Chamber Institute for Legal Reform and several other parties, asking the Commission to clarify the definition of ‘automatic telephone dialing system’ in light of the D.C. Circuit’s decision.”

  1. The FCC asks “how to treat calls to reassigned wireless numbers under the TCPA.”

The FCC noted that the TCPA “statute carves out calls ‘made with the prior express consent of the called party’ from its prohibitions. The court vacated as arbitrary and capricious the Commission’s interpretation of the term ‘called party,’ including a one-call safe harbor for callers to detect reassignments, and noted that the Commission ‘consistently adopted a ‘reasonable reliance’ approach when interpreting the TCPA’s approval of calls based on ‘prior express consent.’ “

So the FCC seeks public comment on “how to interpret the term ‘called party’ for calls to reassigned numbers. Does the ‘called party’ refer to ‘the person the caller expected to reach’? Or does it refer to the party the caller reasonably expected to reach? Or 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’ (‘such as a close relative on a subscriber’s family calling plan’), rather than… the subscriber herself’? What interpretation best implements the statute in light of the decision? Should we maintain our reasonable-reliance approach to prior express consent? Is a reassigned numbers safe harbor necessary, and if so, what is our specific statutory authority for such a safe harbor? May we, consistent with the statute, interpret the term ‘called party’ to mean different things in differing contexts? How should the Commission’s proceeding to establish a reassigned numbers database impact our interpretation, if at all?”

It is interesting that the FCC asks these questions as part of this request for comment, in addition to the recent Second Notice of Further Proposed Rulemaking about calls to reassigned wireless numbers.

  1. The FCC asks “how a called party may revoke prior express consent to receive robocalls.”

The Circuit Court decision said that “a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller,” meaning that “callers… have no need to train every retail employee on the finer points of revocation” and have “every incentive to avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods.”

So the FCC asked “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.’ For example, what opt-out method would be clearly defined and sufficiently easy to use for unwanted calls? Pushing a standardized code (such as “*7”)? Saying ‘stop calling’ in response to a live caller? Offering opt-out through a website? For unwanted texts, would a response of ‘stop’ or similar keywords be sufficiently easy to use and clearly defined? What other methods would be sufficient? And must callers offer all or some combination of such methods to qualify?”

  1. The FCC asks whether or not government contractors are "persons" under the TCPA, and thus whether or not they are liable for TCPA violations?

Given the Circuit Court’s decision, the FCC now seeks “renewed comment on two pending petitions for reconsideration of the Commission’s Broadnet Declaratory Ruling” on the TCPA status of government contractors. “National Consumer Law Center asks the Commission to reconsider its interpretation of ‘person’ and clarify that federal government contractors, regardless of their status as common-law agents, are ‘persons’ under the TCPA. In the second, Professional Services Council asks the Commission to reconsider its reliance on common-law agency principles and clarify that contractors acting on behalf of the federal government are not ‘persons’ under the TCPA. We seek comment on issues raised in those petitions and whether contractors acting on behalf of federal, state, and local governments are ‘persons’ under the TCPA. While the question of whether contractors acting on behalf of state and local governments are ‘persons’ for purposes of the TCPA is not raised in the pending petitions for reconsideration of the Broadnet Declaratory Ruling, the Commission has not addressed these questions. Should it do so now? Are all three levels of government subject to the same legal framework in determining whether they are ‘persons’? How is a state or local government official, or a contractor making calls on their behalf, legally similar to or different from federal government callers?”

  1. The FCC asks if the FCC’s 2016 Federal Debt Collection Rules need to be reconsidered.

A petition filed by Great Lakes Higher Education Corp. et al. asked for the FCC to reconsider the TCPA federal debt collection rules the FCC approved in 2016, /article/fcc-narrows-exemption-government-debt-collection-calls-tcpa particularly as it regarded calls to reassigned numbers. “In light of the court’s opinion on reassigned numbers, we seek renewed comment on this and other issues raised by the petition. We also seek comment on the interplay between the Broadnet decision and the Budget Act amendments—if a federal contractor is not a “person” for purposes of the TCPA (as the Commission held in Broadnet), would the rules adopted in the 2016 Federal Debt Collection Rules even apply to a federal contractor collecting a federal debt? Do persons who are not federal contractors collect federal debts? Or does the Budget Act amendment underlying the 2016 Federal Debt Collection Rules undermine the rationale of Broadnet?”

(Sen. Ed Markey (D-MA) continues to lead the charge in Congress to rescind those government debt collection rules with his HANGUP Act.)

The Insights Association will be submitting comments on many of these TCPA issues. We could use more input and guidance from the marketing research and data analytics industry. Get in touch today!