Let’s Try This Again – FCC Seeks Comments on TCPA/Robocall Issues Remanded By D.C. Circuit.

Like telemarketing "robocalls" that never seem to go away, the FCC's attempts to clarify important and difficult statutory and regulatory issues under the Telephone Consumer Protection Act (TCPA) seem to constantly reoccur. Now the FCC is trying again, with a Public Notice seeking comments on: the definition of an "automatic telephone dialing system" (ATDS), how to treat calls to numbers that have been assigned to a new subscriber, how consumers can revoke their consent to receive telemarketing calls, and other TCPA issues teed up in pending or recent petitions. The Commission has put this on a fast track, with comments due by June 13and reply comments due by June 28. Key elements of FCC telemarketing regulations are in play here, so parties that are impacted by TCPA regulations and enforcement should get cracking.

Here's the background to the FCC's recent Public Notice. As covered in our four-part CommLawBlog "Wrong Number!" series, the D.C. Circuit recently reversed several aspects of a 2015 FCC TCPA Order, including the FCC's controversially broad definition of an ATDS and its one-call safe harbor for calls made to numbers that have been reassigned to a new subscriber. On the other hand, the court upheld the FCC's 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC. The FCC's recent Public Notice seeks comments on the following issues and more:

1. 1. Definition of an ATDS. The TCPA defines an ATDS as "equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." In its 2015 Order, the prior FCC interpreted the term "capacity" to include a device that would meet the definition only by the addition of software, which had the apparent effect of including all smart phones in the definition of ATDS. The D.C. Circuit found the breadth of this impact to be "eye-popping," and the current FCC explicitly seeks comments on "how to more narrowly interpret the word 'capacity' to better comport with the congressional findings and the intended reach of the statute." The Public Notice also asks "how 'automatic' must dialing be for equipment to qualify as an automatic telephone dialing system? Must such a system dial numbers without human intervention? Must it dial thousands of numbers in a short period of time? If so, what constitutes a short period of time for these purposes?" Answers to these important questions will directly impact the definition of ATDS, and thus the breadth of enforcement of the TCPA. Similarly, the FCC seeks comments to better define the statutory requirement that ATDS equipment use "a random or sequential number generator." Additionally, the Public Notice asks the important question of whether making telemarketing calls without use of a device's ATDS functionality triggers a TCPA violation. An answer of "No" to this question reduces the scope of possible TCPA enforcement.
   2. Reassigned Numbers. With the goal of enhancing its TCPA enforcement, the FCC's 2015 Order held that "the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone)"." The Order clarified, however, that telemarketers had a one-call "safe harbor" from being subject to liability for TCPA violations (even if that one call did not reveal that the number's subscriber had changed). The D.C. Circuit, however, found the Commission's one-call safe harbor to be impermissibly arbitrary, given that in other places in the 2015 Order, the Commission had allowed callers to "reasonably rely" on the consent of the original subscriber. So, in the Public Notice, the FCC broadly re-opens the issue of what to do about calls to reassigned numbers, how should "called party" be defined, and should there be a "safe harbor"?
   3. Consumer Revocation of Consent. Say that you have consented to receive telemarketing calls or texts from a business, but later you change your mind. Can you revoke your consent? If so, what does the TCPA require you to do to notify the business that your consent has been revoked? In the 2015 Order, the Commission ruled that consumers "may revoke consent in any manner that clearly expresses a desire not to receive further messages," and the D.C. Circuit upheld that finding. So, it is a bit surprising that the Public Notice broadly seeks comments on how consent can be revoked. It appears that the Commission is looking for ways to add specificity to the requirements for revoking consent, which could have the effect of reducing TCPA litigation and enforcement. The Public Notice seeks comments on "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?"
   4. Government Contractors and Debt Collection. The Public Notice seeks comments on petitions regarding whether contractors for federal government agencies are subject to TCPA restrictions. In 2016, the FCC ruled that that the TCPA does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government's instructions. Should that holding be retained? What about contractors for state and local governments? Federal agency debt collection calls?

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The Public Notice has put major elements of TCPA robocalling rules in play. Please contact us if you have questions on these issues.