Eighteen organizations, including the Insights Association, urged the Federal Communications Commission (FCC) "to clarify expeditiously" the Telephone Consumer Protection Act’s (TCPA) definition of an automatic telephone dialing system by finally acting on the U.S. Chamber of Commerce's petition that has been languishing for more than 19 months.
According to the coalition's letter, sent February 5, 2020, FCC action "will bring much-needed clarity to the definition" of an autodialer "and stop the spread of differing court interpretations that have followed in the wake of the D.C. Circuit’s decision in ACA International v. FCC, which was pending before the court for over two years after the Commission issued its 2015 Declaratory Ruling and Order. In fact, just a few days ago, the Eleventh Circuit rejected the overly-expansive ATDS definition adopted by the Ninth Circuit in Marks v. Crunch San Diego, LLC."
"Swift action" will not only help facilitate the development of insights, it will also "stem the tide of abusive TCPA litigation, which has been fueled by uncertainty" of the definition of an autodialer.
IA and our allies "support" the FCCs "efforts to combat illegal calls, including its aggressive enforcement and regulatory actions to protect consumers from illegal caller ID spoofing and to promote call authentication." Those actions, combined with the recently-passed TRACED Act, "are significant steps in the fight against illegal calls."
Now that "substantial progress" has been achieved in combatting illegal calls, it is time for the FCC to "take action to ensure that consumers receive the important, and often time-sensitive, informational calls that legitimate businesses place by reforming the Commission’s TCPA interpretations. Addressing unresolved TCPA issues should be one of the Commission’s very top priorities in 2020. The Commission has received extensive input from a diverse array of stakeholders on the" autdialer definition, "including the D.C. Circuit." The FCC must take action to "ensure" that the audotialer definition "conforms to the text of the statute and provides certainty for actors in the calling ecosystem."
The Chamber's autodialer petition made "two common-sense requests": (1) clarify that to be an autodialer, "equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention"; and (2) "find that only calls made using actual" autodialer "capabilities are subject to the TCPA’s restrictions.” Those proposals "are faithful to the plain language of the TCPA, closely follow the D.C. Circuit’s decision in ACA International, and have strong support in the record. The Commission immediately should act to clarify" the autodialer definition and grant the petition, because:
- "uncertainty about the scope of the" autodialer definition "has led to divergent TCPA interpretations among the federal courts, greatly complicating legal callers’ compliance efforts"';
- "consumers are harmed when they do not receive time-critical, non-telemarketing communications ...because the business is discouraged from placing the call due to litigation risk";
- "reinterpretation of the" autodialer definition is necessary "to bring the definition into conformity with the text of the statute and congressional intent";
- "the ongoing uncertainty surrounding the [autodialer] definition... continues to fan the flames of abusive TCPA litigation"; and
- the FCC "has had ample time to consider the definition."
The coalition letter concluded: "With uncertainty continuing to grow through a confusing patchwork of court interpretations and abusive TCPA litigation continuing to threaten legitimate U.S. businesses, we urge the Commission to act immediately to clarify the definition of [an autodialer]. The Commission can issue an [autodialer] interpretation... that facilitates the ability of businesses to use modern technologies to communicate with their customers effectively and efficiently. The Commission can take this action without impairing its important work to combat illegal automated calls. There is no reason for further delay."
Note: The 11th circuit decision was Glasser v. Hilton Grand Vacations Co., LLC, --- F.3d ---, 2020 WL 415811.