FCC Seeks Comments on TCPA with Eye Toward Reform

Last week, the FCC published a Public Notice seeking comments on a number of TPCA issues that have recently been causing ripples in the industry. Specifically, the FCC is looking for comments about the following: 1) What constitutes an “automatic telephone dialing system” (ATDS); 2) How to treat calls to reassigned wireless numbers under the TCPA; and 3) How may a called party revoke prior express consent to receive robocalls? There are reasons to be optimistic about this notice. The current leadership of the FCC has been vocal in their criticisms of previous interpretations of ATDS. This notice could very well be an important step towards having more business-friendly telemarketing regulations at the Federal level. Those who would like to see that outcome shouldn't miss this opportunity to comment and express their opinions to the leadership of the FCC. Comments are due by June 13, 2018. Click here for more details and comment instructions. To ensure full TCPA compliance, consider having a telemarketing attorney perform a telemarketing audit of your company. A telemarketing lawyer can help with do-not-call laws, telemarketing registrations, telemarketing licenses, avoiding telemarketing fines, telemarketing rules, and a variety of other telemarketing compliance services.

Courts Reach Conflicting Conclusions about Predictive Dialers in Recent TCPA Cases

The Public Notice mentioned in the previous section will hopefully be a significant step towards establishing some clarity in what has become a foggy TCPA compliance environment. An example of the lack of concreteness in the law was seen last week. Two separate judges, several thousand miles apart, issued contradictory rulings on May 14th about predictive dialers and the definition of an ATDS.

In Reyes v. BCA Financial Services, Inc., the Judge held that the predictive dialer used by the defendant was an ATDS under the FCC's 2003 order that defined an ATDS as "an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” The Judge held that this 2003 definition still applied, despite the recent DC District Court's decision in ACA Int'l vs. FCC, which basically threw the exact definition of an ATDS up in the air.

In Herrick v. GoDaddy.com LLC, however, the Judge held that ACA Int'l vs. FCC did do away with the 2003 order. Reliance on those orders or any subsequent court ruling is rejected because, "these courts were bound and guided by the now-defunct FCC interpretations regarding this function. As such, the Court is also not persuaded to follow these holdings, particularly because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute.”

While these contradictory rulings may cause some in the industry a headache, there is a glimmer of light on the horizon as the FCC certainly appears to be in the early stages of taking action to clear up this mess.
Contact a TCPA lawyer here. A TCPA Lawyer can you with a variety of telemarketing compliance topics like cell phone telemarketing laws, robocall laws, autodialer laws, etc.

New Director of FTC's Consumer Protection Unit Appointed

Andrew M. Smith has been confirmed as the new Director of the FTC's Consumer Protection Unit. He's leaving his position as a Partner at the law firm Covington & Burling to head the unit. Read the FTC's press release here.