ACA International Continues Fight for Clarity Under TCPA by Joining Petition to FCC

ACA joins seventeen other organizations from a wide variety of industries requesting the FCC to issue a rule clarifying the meaning of ATDS as used in the TCPA in light of the D.C. Circuit Court’s decision and roadmap in ACA Int’l. v. FCC.

5/4/2018 6:40 AM

ACA International Continues Fight for Clarity Under TCPA by Joining Petition to FCC

For an industry in which the free flow of communication is critical, the Telephone Consumer Protection Act has presented tremendous obstacles for those attempting to effectively recover debts.  As a result, ACA International has been a leader in educating the Federal Communications Commission and federal courts around the country on the challenges surrounding the perilous Telephone Consumer Protection Act landscape, as well as in actively advocating for common-sense TCPA reforms that allow legitimate businesses to communicate with consumers about important matters. 

Given that compliance-minded businesses in the accounts receivable management industry continue to be dragged into court and strong-armed into large settlements on an almost daily basis under the TCPA, for actions that do not remotely threaten the privacy interests that the statute was intended to protect, ACA joined the U.S. Chamber Institute for Legal Reform and 16 other organizations in filing a Petition for Declaratory Ruling seeking desperately needed regulatory relief from the FCC May 3. In order to help curb abusive lawsuits that likely harm consumers overall, ACA and the other petitioners request that the FCC provide much-needed clarification to the TCPA’s definition of automatic telephone dialing system. Specifically, the Petition asks the FCC to accomplish the following objectives:

  1. Confirm that to be an ATDS, equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention; and
  2. Find that only calls made using actual ATDS capabilities are subject to the TCPA’s restrictions.  

The May 3 filing of the Petition with the FCC comes on the heels of the U.S. Court of Appeals for the D.C. Circuit’s highly-anticipated decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C.Cir. March 16, 2018), which served to undo some of the damage caused by the FCC’s 2015 TCPA Declaratory Ruling and Order. While the D.C. Circuit Court of Appeals clearly rejected some of the most hotly-contested aspects of the FCC’s previous expansive interpretations of the TCPA, including striking down its definition of an “automatic telephone dialing system” triggering application of the TCPA, the appellate court did not definitively hold what should qualify as an ATDS. 

Since the D.C. Circuit Court did not give an interpretation of the term “capacity” in the statutory definition of an ATDS or a specific explanation of which devices qualify as an ATDS, the FCC will most assuredly give considerable consideration to the arguments made in the Petition and provide additional guidance on the meaning of an ATDS.  As the composition of the FCC has shifted due to the change in presidential administrations, and with Chairman Ajit Pai at the helm who sharply criticized the 2015 TCPA Order, arguing that the FCC should “shut[] down the abusive lawsuits by closing the legal loopholes that trial lawyers have exploited to target legitimate business communications between businesses and consumers,” there is hope that the FCC will issue more business-friendly rules and relief from class actions. 

Filing this petition with the FCC is part of ACA’s long-term integrated three-pronged advocacy initiative to reform the TCPA to help its members succeed (regulatory, litigation and legislative).  This submission of the FCC petition aligns with ACA’s regulatory strategy, which has, to date, included among other things:

  • Filing a Petition for Rulemaking with the FCC on January 31, 2014, seeking to modernize the TCPA rules in light of changing communication preferences and the growing tide of TCPA class action litigation;
  • Engaging with the FCC in frequent meetings with the commissioners’ offices, the Office of General Counsel and the bureau that is in charge of drafting TCPA clarifications; and
  • Preparing and submitting a variety of comments to the FCC in TCPA-related petitions and filings of other interested parties. 

ACA is also considering filing supplementary comments to the FCC detailing further arguments, information and industry-specific data relevant to the TCPA’s impact on the accounts receivable management industry. 

In addition, ACA has implemented robust strategies to provide industry support for key TCPA-related cases including, but not limited to:

  • ACA Int’l v. FCC (D.C.Cir.).  The appellate court’s opinion set aside the FCC’s explanation of which devices qualify as an ATDS, as well as its understanding of when a caller violates the Act by calling a wireless number previously held by a consenting party but reassigned to a person who has not given consent.  The appellate court, however, sustained the Commission’s ruling that a party can revoke consent through any reasonable means by clearly expressing a desire to receive no further calls or texts;  
  • Marshall v. The CBE Group, Inc. (D.Nev.).  The district court held that the collection agency was not liable under the TCPA for the calls it placed to a consumer’s cell phone allegedly without her consent because the Manual Clicker Application (MCA), the collection agency’s patent-pending web-based software platform used to dial the consumer’s cell phone, paired with LiveVox, Inc.’s cloud-based call connectivity pass-through system, do not constitute an ATDS;   
  • Gulf Coast Collection Bureau, Inc. v. Mais (11th Cir.).  The appellate court ruled that the district court lacked the power to review the validity of the FCC’s 2008 declaratory ruling interpreting the term “prior express consent” under the TCPA. The appellate court also held that the FCC’s 2008 declaratory ruling applies to a wide range of creditors and collectors, including those pursuing medical debt.
  • Van Patten v. Vertical Fitness Group, LLC, et al. (9th Cir.).  The appellate court concluded that the two text messages the consumer received were not actionable under the TCPA because the consumer gave “prior express consent” to receive text messages based on the context in which he gave his phone number, and he did not effectively revoke his consent because he did not clearly express that he did not want to receive the messages;
  • Baird v. Sabre, Inc., et al. (9th Cir).  The appellate court held that the text message the consumer received was not actionable under the TCPA because the consumer voluntarily provided her phone number;
  • Marks v. Crunch San Diego, LLC (9th Cir.).  Supporting the district court’s decision that in order to be an ATDS, dialing equipment must have “a random or sequential number generator,” and that merely having the capacity to call a list of stored phone numbers without human intervention is not “random or sequential number generation;” and
  • Epps v. Earth Fare, Inc. (9th Cir.).  Supporting the district court’s decision that, as a matter of law, the consumer’s alleged revocation was not “reasonable” under the TCPA.  

Finally, the association is also considering a coordinated future campaign to introduce and advocate for legislation in Congress to reform the TCPA.   

ACA International’s efforts to proactively support the accounts receivable management industry are part of the association’s Industry Advancement Program, and are made possible by funding through ACA’s Industry Advancement Fund. 

If you missed any of the articles previously published in ACA Daily that provided more detailed information about Industry Advancement Program supported cases, you can always see the archived articles on the Industry Advancement Program website. Watch for updates when decisions are issued in these cases and learn more about new cases supported by the Industry Advancement Program in the future by reading ACA Daily and logging onto the Industry Advancement Program website throughout the year. The association's TCPA Resource Center, also features related news, ACA’s SearchPoint® documents, legal and regulatory materials, compliance guidelines and more.

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