“What is an autodialer?” The FCC wants to know what you think.
For years, the question of what constitutes an autodialer has confounded courts, the Federal Communications Commission (FCC), and companies that call and text their customers. The implications of that confusion cannot be overstated, as liability under the Telephone Consumer Protection Act (TCPA) often depends on whether a company used an autodialer without the consent of the recipient of the call. The US Court of Appeals for the DC Circuit recently struck down the FCC’s prior definition of autodialer, leaving open this central question of law. The FCC now seeks to fill that void, and is soliciting comments on what constitutes an “automatic telephone dialing system,” along with other important TCPA issues. The comment period, which extends only until June 13, 2018, followed by a 15-day reply period, offers a unique opportunity for companies that call and text their customers to influence public policy.
The TCPA defines an autodialer as any “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 Declaratory Ruling and Order (2015 Order), the FCC’s interpretation of “capacity” means that any equipment requiring the addition of software satisfies the TCPA’s definition. The FCC’s interpretation of capacity was so overbroad that it encompassed all smartphones, and the DC Circuit set it aside in March 2018, in a long-awaited decision on the 2015 Order.
On the issue of autodialer, the FCC’s Public Notice poses more than a dozen questions to commenters. With respect to interpreting the term “capacity” under the TCPA, how much effort should be required to convert a non-autodialer to an autodialer? And can equipment have capacity to be an autodialer if all it requires is that the user flip a switch or click a button? The FCC also seeks help to interpret the term “automatic” in automatic dialer, and specifically just how much human intervention is required before a dialing system crosses the line into being a “manual” dialer. Similarly, the FCC requests comments as to whether an autodialer must be able to dial random or sequential numbers, an issue that the FCC’s 2015 Order failed to adequately address. Finally, the FCC asks whether the autodialing software must be used to initiate a call for that call to be subject to the statutory prohibition, or if any call made from equipment that has autodialing software is subject to the TCPA’s rules on autodialers, even if the call is placed without using the autodialing software.
In the same Public Notice, the FCC also asks for comment on the issue of reassigned wireless numbers. Under the TCPA, a caller must have prior express consent of the “called party” to dial a cell phone number using an autodialer. The FCC previously provided a one-call “safe harbor” for calls made to reassigned cell phone numbers, but the DC Circuit struck that down as “arbitrary and capricious.” The FCC now asks whether some form of a safe harbor makes sense and whether “called party” should mean different things in different contexts. For example, should the called party mean the subscriber, the intended recipient, the person who answers the call, or something different?
The FCC next raises the question of revocation of prior express consent to receive autodialed calls, and specifically “what opt-out methods would be sufficiently clearly defined and easy to use” for callers and consumers alike.
The FCC’s comment period extends until June 13, 2018, with a reply period lasting until June 28, 2018. Comments can be submitted on any or all of the issues raised in the Public Notice. FCC Chairman Ajit Pai, and Commissioner Michael O’Rielly, both of whom are now in the Republican majority on the FCC and were in the minority at the time of the 2015 Order, have strongly encouraged comments. This particular Public Notice presents companies that call and text their customers with a rare opportunity to encourage the FCC to issue sensible, straightforward, and business-friendly guidelines for the TCPA.