In March 2018, the United States Court of Appeals for the D.C. Circuit issued a decision vacating portions of the Federal Communications Commission’s (“FCC”) 2015 Order. This decision will have a profound impact on how the Telephone Consumer Protect Act (“TCPA”) and its implementing regulations will be both interpreted and revisited in the months to come. In the aftermath of the decision, the FCC has gone back to the drawing board to, among other things, address the definition of autodialer or automatic telephone dialing system (“ATDS”) within the meaning of the statute. On May 14, 2018, the FCC issued a public notice seeking comment on the autodialer definition and several other TCPA-related issues.
In light of the D.C. Circuit’s decision, how is the FCC revisiting TCPA regulations?
The D.C. Circuit Court’s Decision
The FCC’s 2015 Order had broadly defined an ATDS to include any telecommunications dialing equipment that had both the present and potential future capacity to place autodialed calls. The D.C. Circuit found that this definition was unreasonable and vacated the autodialer definition portion of the FCC Order that, when applied in practice, could include virtually all modern telecommunications devices, including smartphones. Additionally, the Circuit Court found that the FCC’s 2015 Order was not clear as to whether dialing equipment must be able to generate random or sequential numbers in order to be considered an ATDS or whether dialing equipment can constitute an autodialer within the meaning of the statute even if it lacks that capacity. Further, the Circuit Court found that even though the basic function of an autodialer is to dial numbers without human intervention, the FCC’s definition could still qualify a device as an ATDS even if the device could not dial numbers without human intervention.
The Autodialer Definition
In order to address various aspects of the Circuit Court’s decision, the FCC has released a public notice, asking interested parties to comment on issues related to interpretation and implementation of the TCPA by June 13, 2018. Specifically, the FCC has requested comment on the following questions:
- What constitutes an ATDS?
- How should calls to reassigned wireless numbers be treated under the TCPA?
- What opt-out methods will be sufficient and reasonable for unwanted calls?
Hopefully, public comment will help the FCC in narrowly-tailoring the definition of ATDS so that companies will have a more reasonable federal telemarketing practice guide to follow. In the interim, as we await new FCC guidance, companies operating in this space would be well-served to have their telemarketing practices and procedures reviewed by experienced counsel.