Following confusion in both the courts and the FCC, Congress is now looking to step in and resolve disputed provisions of the Telephone Consumer Protection Act (TCPA). As readers of this blog know, earlier this year in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the D.C. Circuit set aside the FCC’s interpretation of “automatic telephone dialing system” (ATDS) as it was defined in the FCC’s 2015 TCPA Order (2015 Order). In the same decision, the D.C. Circuit also vacated the 2015 Order’s approach to calling reassigned and wrong numbers. As a result, it’s now unclear what the relevant standard is for these provisions of the TCPA.
So far, courts have found addressing the fallout of the ACA Int’l decision to be Mission Impossible. They’re split as to whether the FCC’s prior 2003, 2008, and 2012 orders are still valid or whether the D.C. Circuit’s decision also vacated those rulings. One common question is whether all predictive dialers should be considered ATDS or if the definition should only encompass automatically dialed numbers that are randomly or sequentially generated. The District of Arizona, for example, has said that “this Court will not defer to any of the FCC’s . . . [earlier orders] regarding the first required function of an ATDS . . . .” Herrick v. GoDaddy.com, No. CV-16-00254, 2018 WL 2229131, at *7 (D. Ariz. May 14, 2018). See also Marshall v. CBE Group, Inc., No. 2:16-cv-02406, 2018 WL 1567852, at *4 (D. Nev. Mar. 30, 2018). The Northern District of Georgia, however, applied the 2003 Order in its decision on the issue. Maddox v. CBE Group, No. 1:17-cv-1909, 2018 WL 2327037, at *4–*5 (N.D. Ga. May 22, 2018). Meanwhile, the Southern District of Florida held that the FCC’s position is unclear and either interpretation of ATDS is acceptable. Reyes v. BCA Fin. Services, No. 16-24077, 2018 WL 2220417, at *9 (S.D. Fla. May 14, 2018). To sum it up, the ACA Int’l decision left courts confused as to what extent predictive dialers fall under the definition of ATDS and subsequently the TCPA.
This lack of clarity compelled the FCC to issue a public notice seeking comments on how to define ATDS and address other issues that the court raised, including the treatment of calls made to reassigned and wrong numbers. Comments were due to the FCC on June 13, and Reply Comments are due June 28. Action by Congress, however, could remove the need for FCC interpretation and provide clarity to all parties involved. H.R. 6026, the Stopping Bad Robocalls Act (“the Act”), would create a final TCPA definition for “robocall,” as well as create a national database for reassigned numbers. The legislation substitutes the term “robocall” for “automatic telephone dialing system” and defines it to mean:
using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for a call made using only equipment that the caller demonstrates requires substantial additional human intervention to dial or place a call after a human initiates the series of calls; or using an artificial or prerecorded voice.
As a result, it would be unlawful to use predictive dialers unless there is “substantial additional human intervention to dial” after the series of calls has been initiated. How the FCC interprets that phrase would likely determine the reach of this new legislation were it to be enacted, but it appears utilizing a random or sequential numbers would be allowed so long as the act of calling is not automated.
Additionally, the Act follows the TCPA in that prior express consent is generally required to lawfully make a robocall. However, it also inserts a provision allowing for prior express consent to be “revoked at any time and in any reasonable manner, regardless of the context in which consent was provided.” Courts had previously held that consent given as part of a contract cannot be unilaterally revoked, an issue which the D.C. Circuit read to be outside the 2015 Order. The Act, however, allows consent to be revoked “regardless of the context,” which would be a significant blow to parties that have created agreements of this kind with their consumers.
Overall, the Stopping Bad Robocalls Act would still allow for the use of predictive dialers so long as there is “substantial human intervention,” but it would require changes in industry practices dealing with contractually provided consent. Stay tuned for future updates in this area, but for now, plaintiffs continue to bring TCPA complaints, and for your reference we’ve compiled a list of recent actions here.