On May 14, 2018, the FCC issued a Public Notice seeking comment on a number of issues regarding the proper interpretation of the Telephone Consumer Protection Act (TCPA) in light of the recent decision by the D.C. Circuit Court of Appeals to overturn most of the FCC’s 2015 Omnibus TCPA Declaratory Ruling. Given Chairman Pai’s strong dissent from the 2015 Declaratory Ruling and his statement praising the D.C. Circuit’s findings regarding it, this comment cycle presents a valuable opportunity for parties who have been adversely affected by the uncertainty surrounding the TCPA in certain years to provide input to the FCC on how it should interpret the statute to best serve its intended purpose.

The Public Notice generally focuses on the three main aspects of the D.C. Circuit decision (much of which was also the subject of a recent petition by the U.S. Chamber Institute for Legal Reform and 17 co-petitioners), but seeks comment on other questions as well. Specifically, the FCC is requesting feedback on the following issues:

  • Automatic Telephone Dialing Systems (ATDS). The FCC poses several questions to help assess what constitutes an ATDS. The Commission also asks how it should interpret the term “capacity,” as well as whether the TCPA should apply to a call if a caller is not using ATDS capability to place that particular call.
  • Reassigned Numbers. The FCC seeks comment on how to interpret the term “called party” for calls to reassigned numbers. It further asks whether a reassigned numbers safe harbor is necessary, and how the Commission’s current proceeding to establish a reassigned numbers database should impact its interpretation, if at all.
  • Revocation of Consent. The FCC seeks comment on how a called party may revoke prior express consent to receive robocalls, and specifically, what opt-out methods should be permissible in light of the D.C. Circuit’s decision calling for “reasonable” revocation of consent.
  • Government Contractors and Government Debt Collection. The Public Notice acknowledges pending requests by the National Consumer Law Center, the Professional Services Council, and Great Lakes Higher Education Corp. for the FCC to reconsider previously adopted TCPA rules related to government contractors and government debt collection. In particular, the Public Notice asks whether contractors acting on behalf of federal, state, and local governments are “persons” under the TCPA, and if not, whether the rules adopted in the 2016 Federal Debt Collection Rules order even apply to a federal contractor collecting a federal debt.

Initial comments in response to the Public Notice are due on June 13, 2018, and replies are due on June 28, 2018.