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TCPA Regulatory Update – FCC Seeks Comments on Several TCPA Provisions

Comments are due in a number of important TCPA proceedings in October. In response to a major decision out of the Ninth Circuit last month, which further entrenched a circuit split regarding interpretations of the definition of an automatic telephone dialing system (“ATDS”), the FCC released a Public Notice seeking comment on that definition. Additionally, the FCC is currently reviewing and evaluating comments on provider-initiated call blocking technologies and other technological solutions to the problem of unwanted and illegal robocalls. Finally, the FCC released a Public Notice seeking comment on motor vehicle recalls and the emergency purposes exemption to the TCPA’s prior consent requirement. While no major orders addressing components of the TCPA have been released, it is clear that the FCC is teeing up possible revisions to its TCPA rules to reflect recent court decisions.

FCC Seeks Comment on Definition of ATDS in light of Ninth Circuit Decision

On October 3, the FCC released a Public Notice in response to the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, covered in detail in the September TCPA digest. The Public Notice sought further comment on what constitutes an “automatic telephone dialing system.” In its decision, the Marks court declared the phrase “using a random or sequential number generator” to be “ambiguous on its face” because it was unclear whether that phrase modified both “store” and “produce” in the definition of an automatic telephone dialing system. The TCPA defines an automatic telephone dialing system 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.” The court, therefore, interpreted the statutory language broadly, so that an “automatic telephone dialing system” is “not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to store numbers and to dial stored numbers automatically.” The FCC, therefore, sought comment on how to define an ATDS in light of this holding as well as the D.C. Circuit’s earlier opinion in ACA International v. FCC and any other relevant court decisions. To the extent the statutory definition is ambiguous, the FCC asked how it should exercise its discretion to interpret those ambiguities. Comments on this Public Notice were due on October 17 and Reply Comments will be due on October 24.

Approximately 30 entities submitted substantive comments on this Public Notice. A diverse group of stakeholders, many of whom have been active in related TCPA proceedings, filed comments. Crunch San Diego, LLC, the defendant-appellee and losing party in the Ninth Circuit case, filed comments asking the FCC to reject the Ninth Circuit’s “redefinition” of an ATDS. Instead, Crunch asked the FCC to adopt the Third Circuit’s reasoning in the Dominguez v. Yahoo, Inc. line of cases, which interpreted the statute consistently with its plain terms and clear legislative intent. Several credit unions, including the Credit Union National Association (“CUNA”), the Palteco Credit Union, the Ohio Credit Union League, and the Wisconsin Credit Union League filed comments arguing for a narrow definition of an ATDS. They urged the FCC to adopt a definition that reflects a common understanding of the term and does not sweep in and attempt to regulate legitimate business relationships, such as those between credit unions and their customers. They supported CUNA’s proposed definition of an ATDS as “equipment that has the present capability to generate random or sequential numbers and to dial those numbers without human intervention” (emphasis added). Several other commenters, including Five9, Inc., argued that the definition should include the capacity to generate and store those numbers. The vast majority of commenters, including Sirius XM, NCTA, and the U.S. Chamber for Legal Reform, supported a narrow definition of an ATDS, rather than the one set forth by the Marks court, and emphasized that the Marks definition was not binding on the FCC.

Although the majority of commenters urged the FCC not to follow the Marks decision, the National Consumer Law Center (“NCLC”), on behalf of its low-income clients, did support the Ninth Circuit’s reasoning. NCLC argued that equipment that stores and dials random and sequential numbers (rather than being required to produce them) meets the definition of an ATDS, and that interpreting the TCPA in a manner that would not apply it to devices that dial from stored lists would be inconsistent with other provisions of the TCPA. Finally, addressing the FCC’s concerns that the Marks definition sweeps in ordinary smartphones, NCLC proposed that the FCC “address this concern by clarifying that the TCPA only covers systems that are actually used to make multiple calls or send mass texts, but does not include smartphones not used in these ways.” Several small, California-based law firms also submitted a joint comment supporting the Ninth Circuit’s interpretation and encouraging the FCC to follow suit.

FCC Reviews Comments to Refresh the Record on Call Blocking Technology

Comments were due on September 24 and Reply Comments were due on October 8 on the FCC’s “Robocall Refresh” Public Notice, described in more detail in our August blog. The Public Notice aimed to build upon the FCC’s earlier inquiry into provider-initiated call blocking, and asked several questions about methods to reliably identify and block illegal robocalls, the use of traceback efforts, and how to reduce false positives that result in the improper blocking of legitimate calls. The FCC received a number of substantive comments from a variety of parties – commenters included ACA International, Encore Capital Group, CTIA, Comcast, Securus Technology, the American Bankers Association, T-Mobile, the Voice on the Net Coalition, Electronic Privacy Information Center (“EPIC”), AT&T, First Orion Corporation, Sirius XM, the Voice of America’s Broadband Providers (“ITTA”), PRA Group, the Retail Energy Supply Association, Charter Communications, Transaction Network Services, the American Cable Association, Consumer Groups (including Consumers Union, National Consumer Law Center, Consumer Federation of America, Consumer Action, National Association of Consumer Advocates, Public Citizen, and Public Knowledge), the USTelecom Association, and Numeracle. Reply comments were submitted by some of the above parties, in addition to Sprint, INCOMPAS, a coalition of 35 state Attorneys General, NTCA – the Rural Broadband Association, NCTA – The Internet and Television Association, and Neustar.

Many industry commenters argued that over the past two decades, the FCC’s TCPA interpretations have strayed significantly from the statutory intent, and this Public Notice represents an opportunity for the FCC to realign its interpretations to strictly target unwanted telemarketing robocalls. Some commenters, including ACA International, Encore Capital Group, Sirius XM, and others, pointed out the prevalence of “overblocking,” where call blocking and labeling apps mislabel and block legitimate business communications. Other organizations such as Comcast joined them in supporting various efforts to address the erroneous blocking and labeling of calls. For example, some commenters asked the FCC to establish a clear approval process for a “white list,” so callers can remedy improper blocking. Other commenters, including trade associations CTIA and NCTA, asked for flexibility from the FCC to combat illegal robocalls in “multi-faceted and creative ways.” CTIA asked the FCC to authorize voluntary blocking based on the carrier’s good faith determination that a call is illegal, and to create a robust safe harbor on those grounds. It argued that the concern that legal robocalls will be improperly labeled or blocked should not drive the FCC toward a prescriptive approach. NCTA urged the FCC to permit, but not mandate, blocking pursuant to objective criteria developed by industry standard-setting bodies, such as the SHAKEN/STIR protocol.

FCC Releases Public Notice Seeking Comment on Petition for Emergency Declaratory Ruling Filed by IHS Markit

IHS Markit, a consumer outreach and communications company hired to place calls and deliver text messages alerting customers of the manufacturers’ recalls of vehicles equipped with Takata airbag inflators, sought a declaratory ruling regarding the emergency purposes exemption to the TCPA. Specifically, the Petition sought a ruling that “non-telemarketing calls related to motor vehicle safety recalls are ‘made for emergency purposes[]’ … and [are] thus exempt from the TCPA’s consent requirements for autodialed or prerecorded calls to wireless telephone numbers.” The FCC released the Public Notice on October 4, with comment and reply comment deadlines of November 5 and November 20 respectively. The Petition was first filed by IHS Markit in late September.

FCC Levies $37.5 Million Fine for Spoofed Marketing Calls

The FCC proposed a $37.5 million fine to Tucson-based Affordable Enterprises of Arizona for allegedly making 2.3 million maliciously-spoofed calls within a 14-month period offering home improvement and remodeling services. Affordable Enterprises apparently manipulated the caller ID information such that many calls appeared to come from consumers who were not connected to the company. Calls were also spoofed to come from unassigned phone numbers and pre-paid “burner” phones. In all cases, the caller ID did not show that the calls were coming from Affordable Enterprises. The FCC released a redacted Citation and Order outlining the alleged violations.


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Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

Radhika Bhat