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FCC Begins Process of Updating TCPA Following Appeals Court Decision

The Federal Communications Commission has begun taking the steps to update the Telephone Consumer Protection Act following a ruling in a lawsuit filed against the agency by ACA International that struck down many of the changes it had made back in 2015.

The announcement by the FCC’s Consumer and Governmental Affairs Bureau comes just a few days after a petition was submitted to the FCC by a number of trade groups, including ACA International and others from the banking and financial services industry. That petition sought to address many of the same issues that the FCC raised in the announcement it released yesterday. In that announcement, the FCC said it is seeking comment on interpretations within a number of areas of the TCPA.

The FCC’s notice is seeking comments on a number of areas:

What constitutes an “automatic telephone dialing system.”

The TCPA defines an autodialer as any equipment with the “capacity” to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers. Back in 2015, under a declaratory ruling, the FCC had adapted the definition to include any device which had the present or future capacity to undertake the core tasks that define an autodialer, which included just about every smartphone on the planet.

That updated definition was set aside by the ruling of the Court of Appeals for the District of Columbia so now the FCC needs to develop a new definition. From the FCC:

For example, how much user effort should be required to enable the device to function as an automatic telephone dialing system? Does equipment have the capacity if it requires the simple flipping of a switch? If the addition of software can give it the requisite functionality? If it requires essentially a top-to-bottom reconstruction of the equipment? In answering that question, what kinds (and how broad a swath) of telephone equipment might then be deemed to qualify as an automatic telephone dialing system? Notably, in light of the court’s guidance that the Commission’s prior interpretation had an “eye-popping sweep,” we seek comment on how to more narrowly interpret the word “capacity” to better comport with the congressional findings and the intended reach of the statute.

The FCC is also seeking comment on the functions that equipment must perform to meet the definition of an autodialer. The key concept the FCC is trying to understand in this area is what determines whether an autodialer is “automatic” or not. Does automatic mean no human intervention whatsoever, the FCC asks, or does it mean it must be able to dial thousands of numbers in a short period of time? And if that is the case, how short is that period?

How to treat calls to reassigned wireless numbers under the TCPA

In order to contact someone’s mobile phone, prior express consent must have been given by the individual owning the phone. In many cases, phone numbers are reassigned to other individuals and it can be impossible for — in this case a collection agency — to know if an individual no longer is using a phone number. In 2015, the FCC created a one-call safe harbor that gave entities one shot at detecting whether a number had been reassigned or not.

We seek comment on how to interpret the term “called party” for calls to reassigned numbers. Does the “called party” refer to “the person the caller expected to reach”? Or does it refer to the party the caller reasonably expected to reach? Or does it refer to “the person actually reached, the wireless number’s present-day subscriber after reassignment”? Or does it refer to a “‘customary user’ (‘such as a close relative on a subscriber’s family calling plan’), rather than . . . the subscriber herself”? What interpretation best implements the statute in light of the decision? Should we maintain our reasonable-reliance approach to prior express consent? Is a reassigned numbers safe harbor necessary, and if so, what is our specific statutory authority for such a safe harbor? May we, consistent with the statute, interpret the term “called party” to mean different things in differing contexts? How should the Commission’s proceeding to establish a reassigned numbers database impact our interpretation, if at all?

How a called party may revoke prior express consent to receive robocalls

Currently, individuals can revoke consent using any “reasonable” means, but the definition of constitutes what reasonable is not clear.

We seek comment on what opt-out methods would be sufficiently clearly defined and easy to use such that “any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.” For example, what opt-out method would be clearly defined and sufficiently easy to use for unwanted calls? Pushing a standardized code (such as “*7”)? Saying “stop calling” in response to a live caller? Offering opt-out through a website? For unwanted texts, would a response of “stop” or similar keywords be sufficiently easy to use and clearly defined? What other methods would be sufficient? And must callers offer all or some combination of such methods to qualify?

The FCC is also seeking “renewed” comment on a petition for reconsideration of the 2016 Federal Debt Collection Rules, which was filed by a number of petitioners.

The petitioners asked “the Commission to reconsider several aspects of the rules, including the applicability of the TCPA’s limits on calls to reassigned wireless numbers. In light of the court’s opinion on reassigned numbers, we seek renewed comment on this and other issues raised by the petition.”

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