As expected, 2018 is developing into a significant year for the Telephone Consumer Protection Act (TCPA). In March, the D.C. Circuit issued an opinion in ACA Int’l v. FCC, setting aside portions of the FCC’s 2015 TCPA Order. In May, the FCC responded by soliciting comments on how various TCPA provisions should be interpreted in the wake of ACA Int’l. This month, Senator Ed Markey (D-MA) and U.S. Representative Frank Pallone (D-NJ) introduced companion bills in the Senate and House (referred to as the “Stopping Bad Robocalls Act”) seeking to expand the scope of the TCPA.
The Stopping Bad Robocalls Act (Act) appears to be a direct response to ACA Int’l and the FCC’s forthcoming TCPA order. FCC Chairman Ajit Pai and Commissioner Michael O’Rielly strongly dissented to the 2015 Order arguing, among other things, that it impermissibly expanded the scope of the statute. The commissioners’ dissenting opinions foreshadow how the FCC – now under Chairman Pai’s leadership – may soon interpret the TCPA. The Act aims to prevent the FCC’s narrow interpretation of the TCPA by expressly expanding the scope of the statute.
The most significant proposed change is to replace the term “automatic telephone dialing system” (ATDS) with “robocall”, which the Act defines as:
A call made (including a text message sent)….using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for a call made using only equipment that the caller demonstrates requires substantial additional human intervention to dial or place a call after a human initiates the series of calls; or…using an artificial or prerecorded voice.
The definition eliminates the concept of “capacity,” but expands the statute to expressly cover text messages and equipment that makes a series of calls from a stored list (i.e. predictive dialers or mass texting platforms). The proposed definition excludes “equipment that the caller demonstrates requires substantial additional human intervention to dial or place a call after a human initiates the series of calls.” If adopted, expect significant disagreement between plaintiffs and defendants about what qualifies as substantial additional human intervention. Most courts have held that a click-to-dial system is not an ATDS because it requires human intervention for each call. It’s unclear whether such a system will meet a “substantial additional human intervention” test. Another notable aspect of the definition is that it shifts the burden of proving human intervention (or lack thereof) from plaintiffs to defendants.
The Act would also: (1) codify the FCC’s 2015 ruling that express consent may be revoked at any time and through any reasonable means (no specifics are provided on what revocation methods are reasonable); (2) require the FCC to submit a report to Congress on how to best limit the number of unwanted text messages; (3) require the FCC to narrowly construe TCPA exemptions, including limitations on the number of permissible calls; (4) require the FCC to create a reassigned number database; (5) define “called party” as the current subscriber of the phone number (triggering liability for calls to reassigned numbers); (6) provide a limited safe harbor for callers that had consent to call the prior subscriber and scrub calling lists against the reassigned number database; (7) extend the statute of limitations for Truth in Caller ID Act violations to 4 years; and (8) require the FCC to adopt regulations related to caller ID authentication technologies.
The Act’s chances of passing are uncertain at this time.