Working for You: ACA Calls for FCC to Clarify TCPA As Soon As Possible
ACA International files comments with FCC in response to its public notice concerning the interpretation of the law following the D.C. Circuit’s decision in ACA Int’l et. al. v. FCC.
6/13/2018 2:30 PM
Telephone Consumer Protection Act reform is in the spotlight for the first time in decades and ACA International is at the forefront of ensuring the needs of legitimate businesses and consumers are considered as the Federal Communications Commission reviews the law.
ACA continues to seek clarity on the interpretation of the TCPA following the U.S. Court of Appeals for the D.C. Circuit’s decision in ACA International v. Federal Communications Commission, et al. through comments submitted to the FCC June 13. ACA International has been seeking these reforms through Congress, the FCC, and most recently in its victory in the U.S. Court of Appeals for the D.C. Circuit.
“The D.C. Circuit indicated in its recent decision in response to our legal challenge of the 2015 Order that more clarity is needed about how legitimate businesses such as the collection industry should comply with FCC TCPA interpretations,” said Leah Dempsey, ACA International’s vice president and senior counsel of federal advocacy. “We appreciate that the Commission appears to recognize many of the problems stemming from TCPA interpretations from both past FCC leadership and courts, and its attentiveness in seeking feedback on these matters.”
Overall, ACA’s comments focus on the impact of frivolous litigation under the TCPA for businesses, conflicting case law and interpretations of the law that have not kept up with technology used by consumers and business, such as smartphones and automatic telephone dialing systems.
The FCC is tasked with revisiting the definition of an ATDS following the D.C. Circuit Court’s decision, which struck down the overly broad interpretation of what was considered an autodialer.
“As a result of our lawsuit some of the most egregious aspects of the 2015 Order including the definition of an ATDS and the reassigned number one-call safe harbor were struck down, but in general the operating environment still remains far from certain or workable for businesses and consumers alike,” Dempsey said.
ACA outlined some of the case law handed down even since the March decision, showing that there is still confusion and conflicting decisions from courts.
As the ACA Int’l D.C. Circuit decision highlights, the FCC has more work to do to address flaws in the 2015 Order and other past TCPA interpretations.
ACA argues it should act immediately to address these concerns for the protection of both consumers, who need to understand their rights, and businesses, such as those in the accounts receivable management industry, that are vulnerable to predatory litigation based on impractical and unclear requirements.
In its comments, ACA respectfully suggests the FCC address the following actions as soon as possible:
- Provide an appropriately tailored interpretation of what is considered to be an ATDS, with the pertinent clarification that not all predictive dialers are an ATDS;
- Clarify that “capacity” under the TCPA means present ability and explain that when human intervention is required for a call, the call is not made using an ATDS;
- Provide a safe harbor for reassigned numbers that better aligns with its statutory directive and address key questions about what is considered a “called party” including interpreting it is an “intended recipient”;
- Provide better parameters for how a consumer can revoke consent, which gives both consumers and businesses flexibility but also more certainty about what is considered “reasonable” including methods outlined in contractual agreements; and
- Reexamine the Commission’s interpretation of the Bipartisan Budget Act of 2015, which was intended to exempt calls “made solely to collect a debt owed to or guaranteed by the United States” from the prior express consent requirement of the TCPA. The Commission‘s interpretation conversely created new burdens and confusion for attempting to collect this kind of debt.
By adopting these needed clarifications and updates to its TCPA rules, the commission will be serving both consumers and businesses by not unnecessarily impeding the flow of needed information.
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