Marks Decision Leads FCC to Re-Open Comment Period on TCPA Changes

The Federal Communications Commission has re-opened the comment period on its proposed changes to the Telephone Consumer Protection Act, specifically seeking input on how the decision in Marks v. Crunch San Diego affects the definition of what constitutes an automatic telephone dialing system.

The FCC has been working on updates to the TCPA following a ruling earlier this year in ACA International v. FCC, which invalidated much of a 2015 Declaratory Order issued by the agency that attempted to clarify the law.

In re-opening the comment period, the FCC noted that the rulings in both Marks and ACA International are somewhat contradictory and do not align with one another. The court in Marks ruled that any equipment which can either store numbers to be called or has the capacity to store numbers, where the court in ACA International “held that the TCPA unambiguously foreclosed any interpretation that ‘would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage.’ ”

The FCC proposes a number of questions, which it is looking for help to “interpret and apply the statutory definition” of an ATDS. The questions the FCC asked in its notice re-opening the comment period are:

  • To the extent the statutory definition is ambiguous, how should the Commission exercise its discretion to interpret such ambiguities here?
  • Does the interpretation of the Marks court mean that any device with the capacity to dial stored numbers automatically is an automatic telephone dialing system?
  • What devices have the capacity to store numbers? Do smartphones have such capacity?
  • What devices that can store numbers also have the capacity to automatically dial such numbers? Do smartphones have such capacity?
  • In short, how should the Commission address these two court holdings?
  • We also seek comment on any other issues addressed in the Marks decision that the Commission should consider in interpreting the definition of an “automatic telephone dialing system.”

Comments can be filed until Oct. 17, 2018.

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