Caveat Vendor

More Clarification Needed: FCC Seeks Public Input on Autodialer Definition under TCPA

November 20, 2013

Matt Gibson and Lisa Nowlin

Loyal blog readers may recall our earlier posts concerning the new Federal Communications Commission (FCC) Telephone Consumer Protection (TCPA) rules and the requests of some in industry for modification or enforcement forbearance.  Well, we're not done yet.

On November 19, the FCC released a Public Notice soliciting public comment on a petition requesting that the agency clarify the scope of the term "automated telephone dialing system" (ATDS) under the FCC's implementing regulations.

The TCPA and the FCC's implementing regulations state that ATDS are devices that have “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.”  Given the rise in TCPA class actions over the past several years, coupled with a recent revision of the FCC's implementing rules, the factual question of whether an ATDS was used to place telemarketing calls can play a central role in the viability of a TCPA claim.  Within this context, the Professional Association for Customer Engagement (PACE) has petitioned the FCC to issue a declaratory ruling or to initiate a fast-track rulemaking proceeding to narrow the scope of the ATDS definition by giving its interpretation of a key word in the statutory definition of ATDS.

In its filing, PACE has asked the FCC to expound upon the meaning of “capacity” in two key respects.

  • First, PACE asks that the FCC interpret the ATDS definition to exclude any system that requires some quantum of human intervention--whether a single mouse click or the manual dialing of a full ten-digit telephone number.

  • In addition, PACE has asked the FCC to clarify whether the term “capacity” is limited to a dialing system’s capabilities at the time that a call is made (as opposed to a theoretical capacity based on equipment design).

Given the deference that courts give to the FCC's interpretation of the Communications Act, the resulting decision by the FCC could have a significant impact on  future TCPA litigation by clarifying what systems do--or do not--qualify as ATDS.

The FCC could ultimately decide to accept and officially adopt PACE's interpretation, reject it outright, take an entirely different approach, or decide to take no further action.  Much will depend on the new FCC Chairman's views on the TCPA and privacy issues, generally.

Comments on PACE's Petition are due to the FCC by December 19, 2013, with reply comments due by January 4, 2014.

Caveat Vendor is Paul Hastings’ Consumer Issues blog. We welcome your feedback. Please contact our blog editor with any thoughts or suggestions.

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