The comment period for the second round of the Federal Communications Commission’s proposed changes to the Telephone Consumer Protection Act expired on Wednesday and a number a ARM industry participants and members of the financial services industry at large filed comments in relation to how the agency should move forward in the wake of the Ninth Circuit Court of Appeals decision in Marks v. Crunch San Diego.
Among those who filed comments were:
- The Student Loan Servicing Alliance, Navient Corp., Nelnet Servicing, LLC, and The Pennsylvania Higher Education Assistance Authority
- ACA International
- Professional Association for Customer Engagement
- Encore Capital Group
- Noble Systems
In reading some of the comments from participants in the ARM industry, it was as if some of them were compelled to submit their comments because the Marks ruling was the straw that broke the camel’s back.
From Encore Capital:
Encore Capital Group, Inc. submits its comments in the above-referenced dockets. To date, Encore has purposely abstained from directly commenting on the definition of an automatic telephone dialing system (“ATDS”), but we feel compelled to comment at this pivotal juncture given the importance of this issue to the one out of five American consumers our company works with.
In light of the ACA International and Marks decisions, now is the time for the Commission to provide a reasonable interpretation of ATDS that is consistent with the statutory language of the TCPA and congressional intent. TCN encourages the Commission to reject the Marks court’s approach and confirm that the term ATDS only includes equipment that has and uses a random or sequential number generator to store or produce numbers and dials those numbers without human intervention. Doing so will protect consumers while preventing further confusion and unwarranted TCPA litigation, and it will also support American call center jobs and enable legitimate companies to continue providing high-quality services to consumers.
From the group including Navient:
The Ninth Circuit’s Marks decision, meanwhile, should not inform the Commission’s analysis. The Ninth’s Circuit’s analysis includes a number of material errors and has little persuasive value. Instead, the Commission should focus on the statute’s text and adopt the above formulation, which would protect consumers while providing a clear compliance path for good-faith callers to meet demands for time-sensitive information.
From Noble Systems:
One of the most dangerous roads to travel is found at the intersection of law and technology. While some courts regularly address complex technologies,3 many others do so infrequently and may not be versed in addressing technological issues. Many appellant judges are admittedly limited in their understanding of technology, including digital electronics. As will be seen, a failure to understand the technology can result in an “accident” at this intersection, leading to poorly formed legal conclusions, including a conclusion that the TCPA statutory definition of an ATDS is ambiguous, when in fact, the statutory language is spot-on in addressing the technology and statutory goals of that time.