FCC Seeks Comments on Key Issues Post-ACA Int’l

Less than a week after the D.C. Circuit issued its mandate in the ACA Int’l v. FCC matter, the FCC has now asked for comments on critical TCPA issues in light of the D.C. Circuit’s now-final decision. See ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In its May 14, 2018 Public Notice, the Consumer and Governmental Affairs Bureau has identified several key issues on which it seeks comments, including the scope of the ATDS definition, how to treat calls to reassigned numbers, and standards for revoking consent. On each issue, the Notice confirms that the FCC is taking a much broader view of the TCPA landscape than it did in its 2015 Declaratory Ruling and Order (“2015 TCPA Order”)—and is willing to consider, in light of the ACA Int’l decision, bright-line rules that will provide much-needed clarity to businesses and litigants.

For example, after noting that the D.C. Circuit had set aside the 2015 TCPA Order’s expansion of the ATDS definition as “eye-popping,” the Public Notice now solicits “comment on how to more narrowly interpret the word ‘capacity’ to better comport with the congressional findings and the intended reach of the statute.” It also seeks comment on the specific functionality required by the statutory definition, citing the ACA Int’l decision for the proposition that “dialing numbers from a set list cannot, by itself, qualify as dialing random or sequential numbers” within the meaning of 47 U.S.C. Section 227(a)(1).

The Public Notice also seeks comment on the question, identified by the D.C. Circuit in ACA Int’l, whether the consent requirement applies only to calls made with the autodialer functionality, and more broadly asks how the various statutory provisions should be interpreted “in harmony[.]” In this context, the FCC also requests comments on the petition filed last week by a leading coalition to clarify the ATDS definition in light of ACA Int’l.

The FCC suggests that it will take the same broad perspective on the problem of reassigned numbers. The Public Notice identifies several different interpretations of “called party” as relates to calls to reassigned numbers, including (for example) “the party the caller reasonably expected to reach,” and asks which interpretation “best implements the statute in light of the [ACA Int’l] decision?” More generally, the FCC asks whether it should “maintain our reasonable-reliance approach to prior express consent.”

And while the ACA Int’l decision had left standing the portion of the 2015 TCPA Order that related to revocation of consent, the FCC now has asked for comment on “clearly defined and easy-to-use” methods of revocation, noting the D.C. Circuit’s observation that “any effort[s] to sidestep” such methods “might well be seen as unreasonable.” The Public Notice lists several examples of possible standardized opt-out methods, including a standardized code or message in response to a live caller, or “stop” or similar keywords provided in response to unwanted texts.

The Public Notice also tees up the issue of whether contractors acting on behalf of federal, state, and local governments are “persons” under the TCPA, asking in particular how state or local government officials and their contractors are “legally similar to or different from federal government callers.” It also seeks comments on several petitions for reconsideration of prior TCPA orders on debt collection and other issues.

In short, the FCC appears to have heeded the D.C. Circuit’s mandate, and will now consider new and specific rules that seem likely to comport with the statute’s intended reach, while avoiding the prior regulatory overreach that the D.C. Circuit vacated.

As for timing, the Public Notice suggests that the proceeding will not be hampered by prolonged delay. In contrast to the multi-year process that finally resulted in the 2015 TCPA Order, the Notice has set June 13, 2018 as the deadline for comments, with replies due June 28, 2018.

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