As we previously reported, the D.C. Circuit issued its long-awaited decision in ACA International v. FCC just a few months ago, setting aside the Federal Communications Commission’s (FCC) overly expansive definition of “automatic telephone dialing system” (ATDS or autodialer) and its ruling on reassigned telephone numbers, both from 2015, but declining to set aside the FCC’s 2015 rulings on revocation of consent and the scope of the exigent healthcare exemption applicable to wireless calls. As we predicted, the opinion created almost as many questions as it answered, and the FCC is wasting no time, issuing a notice seeking public input in an attempt to put some of those open issues to rest. Comments are due by June 13, 2018. The reply comment deadline is June 28, 2018.

Through the notice, the FCC seeks comments on three key issues left stranded in the turbulent wake of ACA Int’l—issues that will likely impact FCC orders and court rulings in TCPA matters for many years to come. In particular, the FCC asks for public input on:

  1. What constitutes an ATDS? The TCPA defines an automatic telephone dialing system 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.” In its 2015 Order, the FCC interpreted the term “capacity” to include the potential capacity to autodial even if the system is not presently being used in such a capacity, but could be made to do so with a simple software upgrade—an interpretation which the D.C. Circuit, in ACA Int’l, implied ropes in virtually every electronic device on the planet (e.g., smartphones) and thus set it aside. The FCC now seeks comment on how to interpret “capacity” going forward, asking, among other things, (i) “how much user effort should be required to enable the device to function as an ATDS,” (ii) “[d]oes equipment have the capacity [to autodial] if it requires the simple flipping of a switch” and/or (iii) is a software upgrade enough or should it “require[] essentially a top-to-bottom reconstruction of the [autodialer] equipment”? Along those lines, the FCC is also inquiring as to how “automatic” dialing must be for equipment to qualify as an ATDS under the TCPA—e.g., whether it means that the dialing system (i) must involve the nonmanual dialing of phone numbers without human intervention, (ii) must “dial thousands of numbers in [some yet-to-be-defined] short period of time” and/or (ii) “cannot itself dial random or sequential numbers” in order to be an ATDS.
  2. How to treat calls to reassigned wireless numbers under the TCPA. The TCPA carves out calls made with the prior express (or prior express written) consent of the “called party.” In its 2015 Order, the FCC interpreted the term “called party” to mean the current subscriber of the phone number and gave callers a one-call safe harbor to detect reassignments. In ACA Int’l, the D.C. Circuit determined that the one-call safe harbor was arbitrary and capricious, suggesting that one call might not be enough of a cushion for callers to properly detect reassigned numbers and the FCC’s strict liability approach was unjustified. Accordingly, the FCC now seeks comment on whether the term “called party” refers to, among other things, (i) “the person the caller expected to reach,” (ii) “the party the caller reasonably expected to reach” or (iii) “the person actually reached, the wireless number’s present-day subscriber after reassignment.”
  3. What method(s) should called parties use to revoke prior express consent for robocalls? Finally, in its 2015 Order, the FCC declared that consent under the TCPA could be revoked at any time by “any reasonable means” where a consumer had clearly expressed a desire not to be called, but expressly rejected arguments that companies could unilaterally determine the method of revocation. While the D.C. Circuit upheld the FCC’s determination in ACA Int’l, the panel also noted that the revocation (a.k.a. “opt-out”) methods must not constitute an “undue burden” on companies and that the consumer must have a “reasonable expectation” that he/she can effectuate revocation in a given circumstance. Along those lines, the FCC seeks comment on “what opt-out method would be clearly defined and sufficiently easy to use for unwanted calls.”

In addition to the foregoing, the FCC is seeking renewed comment on two pending petitions for reconsideration of the FCC’s 2016 Broadnet Declaratory Ruling in light of the D.C. Circuit’s decision.