The FCC is going back to the drawing board—and it wants some help.
Earlier this week, the Commission announced that it is seeking comments “on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA), following the recent decision” of the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).
As we have written previously, in March the D.C. Circuit issued its long-awaited ruling on the FCC’s 2015 Omnibus Telephone Consumer Protection Act Order (2015 Order) in which the Commission set out to resolve 21 requests for clarification about the TCPA and related rules and orders. The D.C. Circuit’s decision dealt a partial blow to the 2015 Order, setting aside the FCC’s interpretation of “automatic telephone dialing system” (“autodialer” or “ATDS”) as overly broad and vacating the agency’s approach to calling reassigned numbers—i.e., restrictions on calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The D.C. Circuit vacated in particular the FCC’s reading of the statute to permit a one-call safe harbor for callers to determine whether a number had been reassigned to a nonconsenting person. The court, however, did uphold the FCC’s conclusion that parties may revoke their consent through any “reasonable means” clearly expressing a desire to receive no further messages from the caller. It also upheld the scope of the Commission’s exemption for time-sensitive, healthcare-related calls.
In light of the D.C. Circuit’s decision, the FCC is now looking for input from interested parties on how to define ATDS and how to address the other issues that the court raised, including the treatment of calls made to reassigned numbers.
First, the FCC is seeking comments on what constitutes an “automatic telephone dialing system,” and in particular on how to interpret the term “capacity” in the TCPA’s definition of 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 FCC had interpreted the term to include a device “even if, for example, it requires the addition of software to actually perform the functions described in the definition,” but the D.C. Circuit determined that this interpretation was “utterly unreasonable in the breadth of its regulatory [in]clusion.” The FCC thus requests suggestions on how to come up with a narrower construction—and it has some questions in mind:
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?
Second, the FCC seeks comments on how to treat calls to reassigned wireless numbers in light of the D.C. Circuit’s decision vacating the Commission’s one-call safe harbor. Given that the statute excludes from regulation calls “made with the prior consent of the called party,” the FCC wants to know, for example, whether “called party” refers to “the person the caller expected to reach”; the party the caller reasonably expected to reach; “the person actually reached, the wireless number’s present-day subscriber after reassignment”; or a “customary user,” which could include a close relative on the subscriber’s family calling plan. The FCC also seeks feedback on the notion of—and statutory authority for—a safe-harbor provision.
Third, the Commission is soliciting comments on how a called party may revoke prior express consent to receive robocalls. More specifically, the FCC seeks input on what opt-out methods would be sufficiently clearly defined and easy to use such that, as the D.C. Circuit put it, “any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.” Pushing a standardized code into your phone (“*7”)? Saying “stop calling” to a live caller? Opting out through a website? All of the above?
Fourth, the FCC seeks renewed comment on two pending petitions for reconsideration of its Broadnet Declaratory Ruling. Issues include whether federal government contractors are “persons” under the TCPA, regardless of their status as common-law agents.
Fifth, the Commission asks for comments on issues raised by Great Lakes Higher Education’s pending petition for reconsideration of the 2016 Federal Debt Collection Rules, including the applicability of the TCPA’s limits on calls to reassigned wireless numbers.
Comments are due June 13, 2018, and Reply Comments are due June 28, 2018.