October 22, 2019

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EPIC sends epic message, NADA Delivers a Whole Lotta and Quicken and CTIA Underscore Urgency in TCPA Comments to FCC

Greetings, TCPAlanders!

I am the Earl of TCPAland.  It is my pleasure to meet you all via the interwebs.  Below, I bestow upon thee my learned thoughts on four more comments to FCC Docket 18-152.  Buckle in, here we go!

Electronic Privacy Information Center (“EPIC”):  EPIC is a public interest research center that was established in 1994 “to focus public attention on emerging privacy and civil liberties issues.”  That’s quite a broad mission statement, which is presumably why it includes TCPA issues.  Our more avid TCPAlanders will know that EPIC submitted an amicus brief in the ACA Int’l case, so its comment submission here is not surprising.  In a nutshell, EPIC advises the FCC to do two things:  (1) define “called party;” and (2) require callers to “facilitate the revocation of consent by called parties.” EPIC proposes defining a “called party” as the “wireless number’s present-day subscriber after reassignment.”  EPIC acknowledges that its definition of “called party” would make it “difficult for callers to know when a number has been reassigned,” so it agrees with the FCC’s proceeding to establish a reassigned numbers database.  Obviously, such a massive database would also have its own issues, imperfections, complications, and functionality issues, but we can cross that bridge when we get there.  With respect to EPIC’s thoughts on consumer revocation of consent, it would like the FCC to require callers to (1) notify consumers of their right to revoke consent in every call or text (and for calls, for the notification to be given in the beginning); (2) provide a means of revocation as simple as “pushing a button or saying ‘stop calling;’” and (3) “comply with a subscriber’s revocation within 24 hours.”

Quicken Loans:  Quicken’s comment is short and sweet.  It simply asks the FCC to “reform regulations and provide clarity” on the more unclear provisions of the TCPA, including the definition of an ATDS, issues over reassigned numbers, and revocation of consent.  Quicken proposes an ATDS definition with fidelity to the statutory language of the TCPA where “the technology must generate a phone number in random and sequential order AND call the number generated.”  Alternatively, Quicken asserts that, if a human intervenes in the automated calling process or when dialing from a specific list of numbers, the rules should be clear that an ATDS was not used to make the call.  Regarding the definition of a “called party,” Quicken requests the term be defined to mean “the intended recipient of a call.”  Finally, on the issue of revocation of consent, Quicken correctly points out that the current option for a consumer to opt-out by “any reasonable means” creates problems – one of which is that it is “operationally impossible” for businesses to monitor every channel of customer communication in order to track whether a customer has revoked consent or not.  Thus, Quicken suggests that the FCC should define “any reasonable means as (1) a company establishing easy-to-access channels for a customer to revoke consent and (2) not using intentionally deceptive options of opt out.”

National Automobile Dealers Association (“NADA”):  Like Quicken, NADA asks the FCC to “bring clarity and rationality back to the TCPA,” (which of course assumes that the TCPA was clear and rational to begin with).  NADA’s comment addresses four requests: (1) clarity as to what an ATDS is; (2) leave text messages out of the TCPA; (3) “called party” should be the “individual that the caller reasonably believed they were going to reach;” and (4) “clear, user-friendly methods for revoking consent” and guidance for callers “on whether such methods must be provided to called parties.”  Regarding ATDS, NADA wants “capacity” to mean “present capacity” and not “potential capacity,” otherwise, the definition is far too broad.  We agree.  NADA would also like clarification on exactly how much human intervention is needed in a phone call in order to “ensure that the TCPA does not apply.”  Further, NADA’s argument with respect to text messages piqued my interest and I think it hit the proverbial nail on the head with this one sentence – “[T]ext messages did not even yet exist in 1991 when the TCPA was adopted – the sole focus was on telephone calls.”  I, for one, am very interested to see if and how the FCC approaches that particular issue.  I guess we will have to wait and see!

Cellular Telecommunications Industry Association (“CTIA”):  CTIA “recognizes that good-faith callers have faced significant legal liability and uncertainty due to the Commission’s TCPA interpretations.”  I agree.  Like many others in the industry, CTIA wants the FCC to define a “called party” as the intended or expected recipient of the call.  It also wants clarity as to what exactly constitutes “reasonable reliance upon prior express consent” with respect to reassigned and wrong numbers and clarity and guidance as to what constitutes reasonable revocation of consent by a called party.  CTIA’s Comment includes a twist on the idea of a reassigned number database.  It essentially proposes an idea of a market-based database as opposed to one single entity being responsible for a reassigned number database.  Reassigned number database providers would be classified as a “covered compliance solution.”  Additionally, CTIA proposes that callers must have consulted a covered compliance solution during the “covered period” so as to avoid liability for inadvertent calls to reassigned numbers.  I personally think that this quite a creative and market-friendly solution.  It will be interesting to see if the FCC chooses to adopt anything resembling this model.

That is all for today.  Stay tuned for additional updates as we read through and digest the comments submitted to the FCC.

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About this Author

Artin Betpera, Class action litigation lawyer, Womble
Senior Counsel

Artin serves as a chief lieutenant on one the nation’s most experienced and powerful class action defense teams.  Precise and analytic, Artin brings over a decade of experience to bear on complex litigation problems.

Artin adeptly manages significant volumes of litigation for some of the country’s largest banks and financial institutions, never losing sight of providing an exceptional level of service to his clients.  He has been a dedicated financial services litigator since starting the practice of law at ground-zero of the financial crisis, affording him with...

Erin Kubota Attorney California Womble Bond Dickinson
Senior Counsel

Erin represents clients in commercial litigation matters in both federal and state courts and has tried several month-long cases before juries in California. Erin’s practice encompasses all aspects of complex commercial litigation, including in state and federal courts and at both the trial and appellate levels. She represents banks, financial institutions and companies in litigation involving the Telephone Consumer Protection Act, the Uniform Commercial Code, the Electronic Funds Transfer Act, the Bank Secrecy Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Truth in Lending Act, fraud, breach of contract, unfair competition, and other matters.

Prior to joining Womble Bond Dickinson, Erin worked as in-house counsel at a large national bank in its Consumer Lending and Corporate Regulatory Division.  In that role, she advised various business lines in the indirect auto lending space on all originations and servicing related issues.

Erin has also managed and supervised a portfolio of bank operations litigation matters for a large national bank for many years, including managing a team of attorneys and paralegals.  In that role, Erin acted as lead attorney on cases and developed a deep substantive knowledge of the Uniform Commercial Code and other areas of law.  During the decade-plus time she spent in this role, she has successfully tried several month-long cases before juries in California.

Erin also worked at the California Attorney General’s Office as a Deputy Attorney in the Health, Education, and Welfare Section.

Erin is admitted to practice in all state and federal courts in California.


  • J.D., 2003, Cornell Law School
  • B.S., 2000, University of California, San Diego
Joshua Anderson Attorney California Womble Bond Dickinson

Josh is a commercial litigation attorney whose practice includes representing clients in the areas of consumer finance, with an emphasis on Telephone Consumer Protection Act (TCPA) cases and compliance, class action defense, and all aspects of business litigation.  In his business litigation practice, he has successfully represented clients in matters ranging from breach of contract and contract interpretation to breaches of fiduciary duty, unfair competition, misappropriation of trade secrets, and partnership disputes.  He represents clients in federal and California state courts.


Martin L. Stern, Womble Carlyle Law Firm, Regulatory Policy Attorney

Mr. Stern provides legal and strategic counsel on regulatory, policy and commercial matters to telecommunications, information technology and media firms, including network operators, programmers, and technology companies, in the United States and globally.  He represents clients before the Administration, Congress, and federal agencies, including the FCC, U.S. Departments of Justice, Commerce, Transportation, and Homeland Security, FTC, White House Office of Science and Technology Policy, and CFIUS.  He also develops and executes regulatory and legislative strategies,...