In the wake of the major shake-up resulting from the D.C. Circuit’s recent decision, ACA International v. FCC, the Federal Communications Commission (FCC) released a public notice requesting comment on how the agency should interpret the Telephone Consumer Protection Act (TCPA) moving forward. The March opinion set aside the FCC’s overly expansive definition of an automatic telephone dialing system (ATDS) as well as the agency’s one-call safe harbor for reassigned numbers.
Recently, a group of senators (mainly Democrats, with one Independent and one Republican on the list) wrote to the agency to request “important consumer safeguards” given the decision.
Not to be outdone, a group of Republican senators sent their own letter to the FCC to discuss the TCPA.
The seven Republican senators reached out to FCC Chair Ajit Pai to suggest an alternative route to the consumer-friendly path suggested by the other lawmakers. “Congress did not intend for the TCPA to be a ‘barrier to the normal, expected or desired communications between businesses and their customers,’” wrote Sens. John Thune (R-S.D.), Roy Blunt (R-Mo.), Jerry Moran (R-Kan.), Shelley Moore Capito (R-W.Va.), Roger T. Wicker (R-Miss.), Deb Fischer (R-Neb.) and James M. Inhofe (R-Okla.).
The legislators expressed concern about interpretations of the TCPA that could result “in uncertainty about how those calling in good faith can comply with FCC regulations, making it more difficult for consumers to receive communications they want and need. This chills legitimate communications and leads to increasing class action litigation that often does little to help consumers. The FCC must make it more workable for legitimate businesses to stay in communication with consumers in a timely and effective manner, while continuing its fight to eliminate annoying, illegal, and fraudulent calls and texts.”
To that end, the letter urged the FCC to “further confirm that, to be an ATDS, equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention, and find that only calls made using actual, not theoretical, ATDS capabilities are subject to the TCPA’s restrictions,” the senators wrote. “Clear rules will allow the FCC to punish illegal actors, while permitting those calling in good faith to understand what they must do to remain in compliance; these are both positive outcomes for consumers.”
To read the letter to the FCC, click here.
Why it matters: Not surprisingly, the letter from Republican lawmakers differed from the missive sent by predominantly Democratic legislators. What the FCC does with the input remains uncertain, as the public comment period on the post-ACA International world of TCPA interpretation has ended and courts continue to reach different conclusions in the interim, trying to find the right balance of protecting consumers from harmful and unwanted robocalls without interfering with their expected and desired communications with companies and each other.