The Federal Communications Commission (“FCC” or “Commission”) has taken its first step in addressing several key issues under the Telephone Consumer Protection Act (“TCPA”) that were raised by the recent D.C. Circuit decision that resolved an appeal of the Commission’s 2015 Omnibus TCPA Order. Specifically, the D.C. Circuit’s March decision in ACA International v. FCC vacated the Commission’s overly broad definition of an autodialer and the Commission’s approach to reassigned numbers, and affirmed the Commission’s approach to revocation of consent. On May 14, the Commission’s Consumer and Governmental Affairs Bureau issued a Public Notice in light of the decision.
The Public Notice seeks comment on several key TCPA issues, including:
- Definition of an Autodialer: Whether equipment is an autodialer or not determines whether TCPA consent requirements apply to calls to wireless numbers. Accordingly, how the FCC interprets the term autodialer directly effects the reach of the TCPA. The D.C. Circuit determined that the interpretation from the 2015 Omnibus TCPA Order—which swept into the definition smart phones and tablets—was overly broad. Accordingly, the Public Notice explicitly asks how the Commission might “more narrowly interpret the word ‘capacity’ [a key word in the relevant statutory definition] to better comport with the congressional findings and the intended reach of the statute.”
- Reassigned Numbers: The 2015 Omnibus TCPA Order created a one call safe harbor for calls to reassigned numbers. The D.C. Circuit struck down that approach, so now, the Public Notice asks generally how the Commission should treat calls to reassigned numbers. This inquiry includes questions about how to define the term “called party,” whether a safe harbor is necessary, and how the reassigned number database that the Commission has proposed in a separate proceeding should affect its interpretation.
- Revocation of Consent: The Public Notice asks for input on how consumers may revoke consent that they previously gave to receive calls. The Public Notice seeks comment on specific opt-out methods.
The issues raised by the Public Notice are of importance to all entities – including media companies – that use modern calling equipment as part of their businesses. Comments on the Public Notice are due June 13 and reply comments are due June 28.