Court upends FCC’s decision on what dialing systems are regulated by the Telephone Consumer Protection Act (TCPA)

The TCPA regulates how companies can call cell phones and send texts messages, requiring specific consent language for marketing campaigns. The law applies to calls and texts sent using an autodialer, defined as any system “with the capacity” to store or produce telephone numbers using a random or sequential number generator, and then dial those telephone numbers. The Federal Communications Commission (FCC) and many courts imposed a very broad interpretation to what is an autodialer. Predictive dialers, which call a list of specific numbers and connect the calls with available company representatives, were sometimes deemed autodialers. Cell phone apps and emails used to send text messages (so-called internet-to-text) systems were also found to be autodialers. Even systems that would require a software download to function as an autodialer were deemed to autodialers.

Finally, last month, the D.C. Circuit Court called an end to the madness. Assuming the court does not reverse on a rehearing, in the next year, we can expect the FCC to revise its rules interpreting what is an autodialer, and for courts to limit their broad interpretations of the law.

In ACA International v. FCC, No. 15-1211, the D.C. Circuit Court found that the FCC’s 2015 ruling on what is an autodialer was unconstitutional. The court found untenable the FCC’s indication that a predictive dialer that cannot generate random or sequential numbers is still an autodialer. The court also found impermissibly broad the FCC’s ruling that any cell phone has the inherent capacity to be an autodialer by downloading an app. Such an interpretation makes the TCPA “assume an eye-popping sweep,” the court stated. Also, the FCC’s ruling was vague and ambiguous about what amount of human intervention is necessary to make a calling system not an autodialer.

Takeaway: So where does that leave businesses in terms of deciding whether their texting/calling system is an autodialer? For the time being, until the FCC issues a new ruling, the safest course is for businesses to still assume that their dialing system or internet-to-text system is an autodialer and obtain prior express consent from called/texted persons for informational messages, and written consent with specific disclosures for marketing messages. However, the ACA decision means relief and sanity are in sight.

The ACA decision also struck down the FCC’s ruling on when the TCPA imposes liability for calling reassigned cell phone numbers. The TCPA, as interpreted by the FCC and courts, requires consent from the subscriber of the recipient cell phone. The FCC’s 2015 ruling said that the caller had to assume the cell phone number was reassigned if no one answered the call or if there was a voicemail for someone other than the person the caller intended to reach. After that first call, all subsequent calls were open to liability. The D.C. Circuit Court said this was “one-call safe harbor” was arbitrary and struck it down. The FCC is working with cell phone service providers to create a director of reassigned telephone numbers so that businesses can keep their records up to date.