Report provides comprehensive overview of recent responses to the Federal Communications Commission’s requests for comment on the TCPA, and call blocking and labeling technologies, including from ACA International.
10/25/2018 14:30
Following the ruling in ACA Int’l v. FCC as well as the recent Ninth Circuit Court of Appeals TCPA case in Marks v. Crunch San Diego LLC, the Federal Communications Commission is receiving significant input from many organizations representing different industries?including the accounts receivable management industry?on the Telephone Consumer Protection Act.
According to a report from Lexology released by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., attorneys Russell H. Fox, Radhika U. Bhat and Elana R. Safner, approximately 30 organizations submitted substantive comments to the FCC.
Several requests for comments on the TCPA, as well as call blocking and labeling technologies to prevent unwanted and illegal robocalls, were due in October and ACA International filed comments as part of its continued advocacy efforts on behalf of members and the accounts receivable management industry.
“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,” Safner, Fox and Bhat report.
The FCC's Consumer and Governmental Affairs Bureau sought comments on how to interpret and apply the statutory definition of an automatic telephone dialing system, including the phrase “using a random or sequential number generator,” in light of the recent decision in Marks, as well as how the Marks decision might bear on the analysis set forth in the ACA’ Int’l case, ACA International previously reported.
Safner, Fox and Bhat provided an in-depth overview of the diverse group of organizations’ comments following the Marks decision.
“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 report.
Credit unions, “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.”
Overall, a significant majority of the commenters, including the U.S. Chamber for Legal Reform, favored a narrow definition of an ATDS over the definition presented by the court in Marks “and emphasized that the Marks definition was not binding on the FCC,” according to the Lexology report.
Some commenters did support the Ninth Circuit’s ruling on ATDS, such as the National Consumer Law Center.
“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,” according to Fox, Safner and Bhat.
Meanwhile, the FCC’s request for comment on call blocking technology due in October also yielded a variety of responses, including from ACA International, cellphone and broadband providers, as well as several other industry associations.
“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,” according to the Lexology article.
Read the complete analysis of recent comments to the FCC on the Lexology website. (Registration to view the article, at no cost, may be required.)
Visit ACA International’s online resource center and advocacy action center for recent comments filed with the FCC and news updates.