Industry Asks FCC to Do More to Limit TCPA Lawsuits
Industry groups are pushing the FCC to take more steps to limit the reach of the Telephone Consumer Protection Act, and particularly the definition of automatic telephone dialing system (ATDS), after the U.S. Court of Appeals for the D.C. Circuit earlier this year overturned key parts of a 2015 order and declaratory ruling (see 1803160053). FCC action addressing industry concerns is widely expected (see 1804160044). The agency sought further comment in an Oct. 3 public notice, and responses were filed Wednesday and Thursday in docket 18-152. TCPA bars ATDS calls only to cellphones.
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Crunch San Diego, which lost the recent TCPA case, Jordan Marks v. Crunch San Diego, on which the FCC sought comment, said the 9th U.S. Circuit Court of Appeals’ definition is overbroad. That court defined an ATDS as a device that "stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” Under that definition, “ordinary smartphones would still qualify as an ATDS because they have the capacity to make ‘calls automatically from a stored list,’” Crunch said.
The National Consumer Law Center supported the 9th Circuit’s definition of ATDS and asked the FCC to adopt it as well. The FCC raised concerns all smartphones would be included in the definition, NCLC said. “We propose that the Commission address this concern by clarifying that the TCPA only covers systems that are actually used to make multiple calls or send mass texts, but does not include smartphones not used in these ways. We believe this approach provides an appropriate solution to the smartphone concern.”
The U.S. Chamber of Commerce led efforts against. “There is simply no need for further delay in bringing reason back to the TCPA landscape,” filed its Institute for Legal Reform and Technology Engagement Center. “Recent judicial decisions confirm the need for the FCC to act.” TCPA lawsuits remain a problem for industry, with 2,706 filed January-August, the Chamber said. It said the FCC should confirm that to be an ATDS call, equipment must rely on a random or sequential number generator to store or produce numbers and dial without human intervention: Clarify that “if human intervention is required in generating a list of numbers to call or in making a call, then equipment in use is not automatic and therefore not an" ATDS.
The American Financial Services Association and Consumer Mortgage Coalition urged strict interpretation of the act. TCPA “sought to remedy the growing problem of telemarketing and fax-blast calls made ‘without incurring the normal cost of human intervention,’” the groups said. "Random and sequential dialing was a key component of the harm sought to be remedied by the TCPA.”
The Credit Union National Association said protections for cellphones versus landlines no longer make sense. “Because the only type of phone most Americans use today is a cell phone, and the vast majority of cell phone subscribers are not charged for incoming calls, this distinction ... is antiquated,” the group said.