Trade Groups Petition the FCC to Adopt a Narrow Interpretation of Autodialer Under the TCPA

By: Andrew C. Glass, Gregory N. Blase, Joseph Wylie, Molly McGinley, Pamela Garvie, Amy Carnevale, Roger L. Smerage, and Hollee M. Watson

A coalition of trade groups recently petitioned the Federal Communications Commission (the “Commission”), urging it to adopt a narrow interpretation of “Automated Telephone Dialing System” (“ATDS” or, commonly, “autodialers”) under the Telephone Consumer Protection Act (“TCPA”). The petition, filed on behalf of the U.S. Chamber of Commerce and other trade associations, follows the March 2018 decision of the U.S. Court of Appeals for the D.C. Circuit that vacated several key elements of the Commission’s 2015 TCPA Order. ACA Int’l v. Fed. Comm. Comm’n, 885 F.3d 687, 692, 701 (D.C. Cir. 2018).  Among other things, the D.C. Circuit set aside the Commission’s 2015 interpretation of what constitutes an ATDS.  The court held that the Commission’s interpretation of the term ATDS was “unreasonably expansive” and “‘offer[ed] no meaningful guidance’ to affected parties in material respects on whether their equipment is subject to the statute’s autodialer restrictions.”  Because of the limited scope of the matter before it, the D.C. Circuit did not itself interpret the term ATDS, but instead provided guidance for the Commission as to how the term should be defined.

Taking a cue from the court’s guidance, the trade groups have now asked the Commission to fill the void created by the D.C. Circuit’s decision and to issue a new order establishing what constitutes an ATDS. Specifically, the petition requests that the Commission confirm that to be an ATDS, equipment must (1) use a random or sequential number generator to store or produce numbers, (2) dial those numbers without human intervention, and (3) actually have these functions be present and active in the device at the time the call is made.  The petition also requests that the Commission find that only calls made using actual ATDS capabilities are subject to the TCPA’s restrictions.  The trade groups argue that by issuing such rules, the Commission will provide much needed guidance to businesses, allowing them to reach customers without incurring frivolous TCPA litigation.

It remains to be seen what action, if any, the Commission will take in response to the petition. However, given the change in control of the Commission since the 2015 TCPA Order, and given current Chairman Ajit Pai’s strong opposition to the 2015 TCPA Order, the trade groups’ petition may be given serious consideration.