Last week, the D.C. Circuit’s decision in ACA Int’l v. FCC, which set aside portions of the FCC’s 2015 TCPA Order, became effective. The FCC wasted little time reopening the underlying proceedings. Through this Public Notice, the FCC seeks comment on the interpretation of the TCPA in light of the D.C. Circuit’s decision. In particular, the FCC seeks comment on the following questions:
- What is an ATDS?
- How should the term “capacity” be interpreted? How much user effort (e.g., flipping a switch versus downloading software versus a top-to-bottom reconstruction) should be required to avoid a finding that the system is capable of functioning as an ATDS? How should the FCC limit the scope of capacity to avoid overbreadth concerns?
- What functions must a device be capable of performing to be an ATDS? Dialing without human intervention? Dialing thousands of numbers in a short period of time? How short a period of time? Must the equipment be able to generate and dial random or sequential numbers?
- Does the statute only apply to calls made using the equipment’s ATDS functionality? If so, how should the FCC interpret the various statutory provisions (including the word “capacity”) in harmony?
- How should the FCC treat calls to reassigned wireless numbers?
- How should the FCC interpret the term “called party”? Is it the person the caller expected to reach, the person the caller reasonably expected to reach, the person the caller actually reached, or is some other definition appropriate? What about a non-subscriber who is the customary user of the phone number? Can the term mean different things in different contexts?
- Should the FCC maintain its approach that callers may reasonably rely on consent provided by an individual?
- Is a reassigned number safe harbor necessary? If so, what is the statutory authority for creating a safe harbor?
- How should the FCC’s proceeding related to a reassigned number database impact the FCC’s interpretation?
- How may a called party revoke consent?
- What opt-out methods (for calls and texts) are sufficiently clear and easy-to-use that efforts to sidestep those methods should be deemed unreasonable?
- Must callers offer all or some combination of such methods to qualify for protection against unreasonable opt-out requests?
The FCC also seeks comment on petitions for reconsideration related to its Broadnet Ruling and Federal Debt Collection Rules (adopted pursuant to the Bipartisan Budget Act of 2015, which exempted from the TCPA calls made solely to collect a debt owed to or guaranteed by the United States).
We encourage interested parties to file comments related to these important issues. Comments are due June 13th. Reply comments are due June 28th.