Lawyers Short on Advice As Everyone Waits for New TCPA Rule From FCC

What meets the definition of an automatic telephone dialing system remains in limbo as courts across the country are making their own determinations as the Federal Communications Commission works on a new rule related to the Telephone Consumer Protection Act, but industries of all shapes and sizes, including the ARM industry, are twisting in the wind while that process slowly moves forward.

A published report spotlights the problems the retail industry is having in the wake of the rulings in ACA International v. FCC and Marks v. Crunch San Diego, but debt collectors are just as unsure about what can and can’t be done based where they are calling. The report notes that there have been 29 rulings related to the definition of an ATDS in the past seven months; 13 of those rulings say the devices must dial numbers at random and the other 16 rulings say that predictive dialers are autodialers, even if they can’t dial numbers randomly.

All of this has created a chaotic situation, lawyers agreed.

It’s “extremely difficult” to figure out if a dialing system may qualify as an autodialer given the current landscape, Christine M. Reilly, who leads Manatt Phelps & Phillips LLP’s TCPA compliance and class action defense group, told Bloomberg Law.

The report noted that a spokesperson from the FCC declined to comment on when the agency will issue its proposed rule. Even when it does, it will still likely be a year or more after the proposed rule is issued until a final rule is enacted. That means that anyone using ATDS’s to make calls could be 18-to-24 months away from receiving their much-sought after clarity. The lawyer representing Crunch San Diego said his client is planning to appeal the Ninth Circuit’s ruling to the Supreme Court, which may decide to hear arguments on the case because of the diverging rulings at the Circuit Court level.

Lawyers quoted in the report offered the following advice:

Companies need to use a system that’s either been tested in the courts or can’t make automated calls, Reilly said. Barring that, they should ensure they get customer consent to avoid liability, [Reilly] said.