A recent decision out of the Ninth Circuit Court of Appeals has led the Federal Communications Commission (“FCC”) to issue a new public notice for comment on what constitutes an “automatic telephone dialing system” (“ATDS”) for purposes of compliance with the Telephone Consumer Protection Act (“TCPA”). The TCPA news just keeps coming.
What was the TCPA news out of the Ninth Circuit and how might it affect the FCC’s proposed plans?
In Marks v. Crunch San Diego, LLC, the Ninth Circuit Court of Appeals concluded that the TCPA prohibits unsolicited telephone calls placed by any equipment capable of making automatic calls even to numbers on a pre-generated list, a deviation from the plain language of the statute. By seemingly overlooking the statute’s restriction on the use of autodialing technology when calling numbers that had been produced by a “random or sequential number generator,” the Ninth Circuit’s ruling is likely to greatly expand the type of devices that can be considered an ATDS, at least within its jurisdiction. Because of this likelihood, the FCC took immediate notice of the issue and is seeking public comment on the implications of the Marks decision.
Readers will recall from our earlier blog that shortly after the D.C. Circuit Court of Appeals’ decision in ACA International v. FCC (which vacated the FCC’s expansive definition of an ATDS as established in prior declaratory rulings), the FCC sought public comment on how to properly interpret the breadth of the ATDS definition for the future. The FCC intended to heed the D.C. Circuit’s concern that today’s common communications devices, such as smartphones, could be deemed autodialers under the vacated-definition. However, the FCC is now concerned that the Ninth Circuit’s decision in Marks reopens the possible exposure of marketers using various modern technology to unwitting TCPA liability. As a result, the FCC has issued notice that it is seeking additional comment from interested parties concerning the ATDS definition. Specifically, the FCC wishes to receive input on questions including, but not limited to, whether the Marks decision would in fact mean that smartphones are autodialers within the meaning of the TCPA and to what extent the Marks decision should bear on its TCPA analysis after the ACA International decision.
The Implications of Recent TCPA News Developments
Marketers require certainty when it comes to compliance with federal telemarketing regulations. In the absence of operative FCC authority, those operating in the telemarketing space may be required to navigate a hodgepodge of rules that develop nationwide. The recent Marks decision underscores the importance of obtaining regular telemarketing guidance. It took only a handful of months following the ACA International decision for another Circuit Court to issue a decision that seemingly directly contradicts the decision of the D.C. Circuit. As such, we expect the FCC to issue a new omnibus order over the coming months that will likely touch upon several core TCPA issues, including the appropriate breadth of the ATDS definition. Against this backdrop of abrupt change in the TCPA regulatory environment, it is imperative to have telemarketing practices and procedures regularly examined by experienced counsel.