It seems as if every few weeks, a new court decision weighs in on how to interpret the Telephone Consumer Protection Act (“TCPA”), especially the meaning of “automatic telephone dialing system” (“autodialer”) and “called party.” Trade associations and telemarketers have petitioned the Federal Communications Commission (“FCC”) for clarification, hoping to reduce the compliance burden and prevent lawsuits from aggressive plaintiff’s attorneys (See TCPA Update for recent filings). Now, fourteen United States Senators have provided their two cents, not on the specific meaning of any definitions, but rather the general direction the FCC should take when clarifying the rules. The Senators’ clear message: Don’t weaken the TCPA’s protections for consumers.
On January 28th, fourteen Senators signed a letter to Chairman Wheeler at the FCC expressing “deep concerns” that the proposed changes being considered by the FCC would “undermine the intent and spirit of the TCPA.” The letter discussed the purpose of the TCPA, indicating that it was passed by Congress to protect consumers from intrusions into the home by telemarketers. Emphasizing the importance of broader protection for consumers, the letter explained that “by banning autodialing and pre-recorded calls to land lines and mobile phones, with certain exceptions, and establishing the National Do Not Call Registry, the law created a zone of privacy that remains hugely popular with consumers to this day.” In closing, the letter reiterated:
American consumers have enjoyed the convenience and privacy that the protections the TCPA have provided for more than two decades. These protections should continue for years to come. The FCC should reject calls to weaken or undermine this effective law.
Although there are numerous petitions pending on a variety of TCPA matters, it is quite clear what concerns the Senators most. The definition of “autodialer” is perhaps the most highly publicized issue, and one over which courts are currently split. Certain courts have followed prior FCC interpretations of the TCPA and have focused on whether defendants’ calling devices had the capacity to autodial when the calls were made. Court rulings, like that in Nelson v. Santander Consumer USA (W.D. Wis. 2013), have held that the issue “is not how the defendant made the particular call, but whether the system it used had the ‘capacity’ to make automated calls.” Other courts have rejected the FCC’s definition of autodialer as being too broad, but it is far from clear just how narrowly these courts would define the term.
Time will tell whether the FCC will provide respite to the industry, emphasize broader consumer protection, or perhaps take a middle approach of issuing a proposed rulemaking. For now, the Senators’ letter is evidence that the TCPA is becoming even more of a hot topic, and guidance from the FCC could be coming down soon.