The Federal Communications Commission intends to define the term "residential telephone line" as used in the Telephone Consumer Protection Act and implementing regulations in response to a petition for declaratory judgment.

Section 227(b)(1)(B) of the TCPA generally makes it unlawful for any person to "initiate any telephone call to any residential telephone line using an artificial or prerecorded voice … without the prior express consent of the called party."

A New York attorney, Todd C. Bank, filed suit against Independence Energy Group over allegedly illegal calls to what he characterized as his residential line. The defendant moved for summary judgment arguing that Bank actually used the phone line for business purposes and it was therefore not covered by the TCPA's prerecorded call restrictions.

Bank used the number as his law office telephone number in pleadings and court filings, in professional correspondence, on his business card, and on his attorney registration form with the court system, the defendant told the court. It also appeared as his contact number in an attorney directory and an identifying number on tax returns for his law practice.

The court granted summary judgment in favor of the defendant, holding that "no reasonable juror could find that the [telephone number] is residential" and that "Bank held out the [telephone number] to the public as a business line." Bank appealed to the Second Circuit Court of Appeals.

While the appeal was pending, Bank then filed a petition for a declaratory judgment asking the FCC to clarify the definition of a "residential telephone line." Specifically, Bank requested that the Commission establish a bright-line rule and declare that Section 227(b)(1)(B) applies with equal force to home-business telephone lines that are registered with the telephone service provider as residential lines.

"This clarification is consistent with the TCPA's purposes and the Commission's orders implementing the statute," Bank argued in his petition. "It would also serve the public interest by enabling individuals who work from home to use their registered residential telephone lines without having to be harassed in the various manners that the TCPA prohibits."

The language of the statute is clear, Bank added: the prohibition does not apply to "some" residential telephone lines but to "any" residential telephone line, without restriction or limitation. Further, the TCPA is a strict liability statute, he argued, and an objective, bright-line test is necessary to avoid extensive discovery in every single lawsuit and avoid uncertainty in the law.

In response, the FCC asked for public comment on the issue. Specifically, the Commission queried whether it should "(1) establish such a bright-line test for identifying a 'residential line' under the prohibition against unconsented-to calls using an artificial or pre-recorded voice, (2) adopt some other bright-line test to identify such lines, or (3) identify some other method, such as a multi-factor analysis, for determining whether a telephone line is a 'residential line' for purposes of the artificial/prerecorded voice call prohibition."

The Commission also filed an amicus brief in the case pending before the Second Circuit, suggesting that the federal appellate panel grant a stay in the litigation and hold the case in abeyance pending the FCC's disposition of the petition.

"The term 'residential telephone line' is a fundamental element of the restrictions on artificial or prerecorded voice calls contained in the TCPA, a statute that the Commission implements and administers," the FCC wrote to the Second Circuit. "It is accordingly appropriate for this Court to stay its hand to give the Commission an opportunity to address the meaning and scope of the term (as Bank has now requested) in the first instance."

As the agency with primary responsibility for implementing and interpreting the TCPA, the FCC told the court it has never interpreted the term "residential telephone line" for purposes of the TCPA's restrictions on calls using an artificial or prerecorded voice.

The Commission has on two occasions "touched upon" the issue of who is a "residential telephone subscriber" under the FCC's do-not-call rules, but neither discussion clearly resolved the issue, the agency said. The first occurred in 2003 when the Commission established the national Do Not Call Registry of "residential telephone subscribers" who object to receiving telephone solicitations. The FCC allowed the registration of wireless telephone numbers, presuming that those who asked to join the list would be residential subscribers, without undertaking a factual analysis or requiring proof that they were in fact residential subscribers.

In 2005, the Commission acknowledged that there was nothing to preclude someone from adding a business or home-based business number to the DNC Registry, because it does not preclude calls to businesses. However, the FCC said at the time that it would "review such calls as they are brought to our attention to determine whether or not the call was made to a residential subscriber," leaving callers without any guidance or elaboration on the analysis the Commission might employ when making such a determination.

Given such uncertainty, the FCC suggested that the Second Circuit's consideration of the issue should be held in abeyance pending disposition of Bank's pending petition. "Congress authorized the Commission to interpret the undefined terms of the statute," the Commission wrote in its amicus brief, relying upon the primary jurisdiction doctrine. "There is no reason for this Court to address this open issue of statutory and regulatory interpretation before the Commission has a reasonable opportunity to resolve Bank's pending petition for declaratory ruling."

To read the petition in In the Matter of Todd C. Bank, click here.

To read the FCC's request for public comment, click here.

To read the FCC's amicus brief in Bank v. Independence Energy Group, click here.

Why it matters: Although Bank filed his lawsuit before his petition for declaratory judgment, the FCC agreed that the litigation should be held in abeyance pending its decision on the issue. For advertisers and marketers, that means all eyes are now on the FCC as it considers how to interpret the term "residential line" under the TCPA. The request for public comment noted multiple possibilities, from Bank's suggested bright-line rule accepting even mixed-purpose telephone numbers on the Registry that are used for both residential and business lines, to a different form of bright-line test or to some other method, such as a multifactor analysis for determining whether a telephone line is a "residential line" for purposes of the artificial/prerecorded voice call prohibition. Public comments were accepted until May 2, and reply comments are due by May 17.