FCC Files Brief In Support of Changes to TCPA

The Federal Communications Commission on Friday filed its brief with the U.S. Court of Appeals for the District of Columbia, responding to a lawsuit filed against the agency by ACA International, which is seeking to overturn changes made to the Telephone Consumer Protection Act.

The brief, at 110 pages, covers all of the arguments made by opponents to the changes to the TCPA announced by the FCC last July. That,

  • Any device or technology, which has the capacity to one day be turned into an automated telephone dialing system (ATDS, or autodialer) is considered to be an autodialer.
  • Companies have a one-call safe harbor when contacting consumers before being in violation of the TCPA.
  • Consumers can revoke their consent to receive calls to their mobile phones at any time and by any means necessary.

With regards to the issue of capacity, the FCC uses a dictionary definition of the word to demonstrate that the future ability should be taken into account when considering the capacity of a technological solution. Also, the word “present” is not included in the original TCPA statute, so the FCC argues it does not have the authority to add it now. The FCC also supplied this anecdote:

If I own a factory that currently produces 1,000 widgets per week, but could produce 2,500 widgets per week if I were to hire additional workers to run the factory overnight and on weekends, then it would be fair to tell a prospective client that I have the “capacity” to produce 2,500 widgets per week—even though my present workforce can’t do that.

Since the TCPA does not distinguish between a “called party” and an”intended recipient,” the FCC is not allowed to do so, either, it claims in its brief. The “called party” is generally considered to be the person responsible for paying the bills or who needs the phone to receive calls, which is different from a call’s “intended recipient.” Changing the language to an expected recipient instead of a called party would change the TCPA to an opt-out model instead of an opt-in model, where consumers have to consent to be contacted.





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