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TCPA Regulatory Update: FCC Reevaluates TCPA Rulings and Seeks Comment on Several Petitions

The Federal Communications Commission (“FCC”) is reconsidering several issues central to TCPA liability, including what equipment constitutes an automatic telephone dialing system ((“ATDS”) and who the “called party” is when a wireless number has been reassigned. A Public Notice released May 14 by the FCC’s Consumer and Governmental Affairs Bureau seeks comment on how to interpret several aspects of the TCPA in light of the recent US Court of Appeals for the DC Circuit decision in ACA International v. FCC. That decision struck key portions of the FCC’s 2015 Omnibus Order and Declaratory Ruling. The Public Notice generally seeks comment on the following:

  • what constitutes an ATDS and the proper interpretation of “capacity” to engage in the functions of an ATDS;
  • how to treat calls to reassigned wireless numbers (separately, the FCC is also conducting a proceeding on establishing a reassigned numbers database);
  • how a called party may revoke prior express consent to receive robocalls;
  • petitions for reconsideration of the FCC’s Broadnet Declaratory Ruling’s interpretation of “person” and whether federal government contractors are “persons” under the TCPA; and
  • the petition for reconsideration of the FCC’s 2016 Federal Debt Collection Rules filed by Great Lakes Higher Education Corp., et al.

The comment and reply comment deadlines are June 13 and June 28, respectively.

The Consumer and Governmental Affairs Bureau also released two Public Notices on May 23. The first Public Notice seeks comment on the Petition for Clarification filed by the Peer-to-Peer Alliance (“P2P Alliance”), reported in last month’s TCPA Digest. The P2P Alliance is a coalition of providers and users of peer-to-peer (“P2P”) text messaging. They have asked the FCC to clarify that P2P text messages are not subject to the TCPA.

The second Public Notice seeks comment on a Petition for Declaratory Ruling filed last year by Insights Association, Inc. and the American Association for Public Opinion Research that, among other things, asks the FCC to find that “communications are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations.” The petition also seeks clarification on dual-purpose communications and survey, opinion, and market research studies. Comments and reply comments for both Public Notices are due on June 22 and July 9, respectively.

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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