Swinging for the Fences: Consumer-Side TCPA Comments Urge the FCC to Adopt the Ninth Circuit’s Definition of an ATDS and Expand the TCPA to Regulate Smartphone Use (TCPAland Comment Review Vol. III)
I just finished reading through most of the big consumer-side comments from notable Plaintiff’s lawyers, and consumer protection organizations. News flash: they all agree that the FCC should adopt the Marks interpretation of an ATDS, and that smart phones should in some form or another be regulated by the TCPA. I summarize the key aspects of each comment for you below.
You’ll note as you read through that some of these comments reference a 1991 Congressional hearing in which predictive dialers were supposedly discussed to make the argument that predictive dialers were in existence in 1992 when Congress passed the TCPA, and thus were intended to be regulated. I’m not so sure about that, so I’ll be watching the video from this hearing personally, and will give you my breakdown to start your week on Monday.
And now, without further ado.
Three Musketeers Abbas Kazerounian (aka the “Godfather of TCPAland”), Josh Swigart (dubbed by his pal Abbas as the “Princess of TCPAland”), and Todd Friedman (one of the “O.G.s of the TCPA”) submitted a comment that in many respects re-hashes what was argued in the Marks appeal. Although as you’ll remember from Episode 20 of the Ramble, Abbas told us that the court’s ultimate ruling was based on an argument that was never made. Namely, that the TCPA inherently contemplates devices that dial from a list because it provides exceptions for calls made with consent. Fair point, and it’s one that the Three Musketeers raised in their comment.
On the topic of smartphones the Three Musketeers distinguished “speed dialing” – which they describe as “simply process of selecting a stored contact in a cell phone handset and then dialing that number – from “automatic dialing”. However, they acknowledged (given the expansive interpretation by Marks), that the group texting functions of smartphones could make these devices an autodialer. And they said to the extent the FCC finds this to be the case, it should fashion a “common-sense exception for smartphones” (whatever that means). Although the comment makes clear that if a smartphone is actually loaded with an application that allows it to “auto-dial stored lists of telephone numbers, either by placing mass calls or sending mass text messages,” then it should be considered an ATDS.
But the trio really went out on a limb when addressing capacity. They said that Marks recognized that “latent” capacity to function as an autodialer would be enough to make a device an ATDS, and urged the FCC to adopt the same standard. Although “latent” is just another way of saying “potential”, and this approach has already been rejected by the D.C. Circuit in ACA Int’l.
So bottom line, the Three Musketeers want the FCC to adopt the Marks interpretation of an ATDS. No surprise there.
But what was really interesting was their assertion that “Congress was made aware of predictive dialers during the senate hearings prior to the enactment of the TCPA.” This statement is supported by a link to a C-Span video of a Senate Subcommittee hearing from 1991. The hearing was two and a half hours long, but they didn’t give us a time-stamp on where the discussion of predictive dialers came up (thanks, guys). Let’s just say I’m skeptical. Plan to read more about it in my follow up piece on Monday.
Jeff Hansen Comment
Plaintiff’s side expert Jeff Hansen (who our readers know well) submitted a comment that contains a lot of opinions we’ve seen him express in litigation concerning the technical aspects of various types of dialing devices. His main point is that predictive dialers are per se automatic telephone dialing systems that Congress intended to regulate because they were both in existence at the time the TCPA was passed, addressed during Congressional hearings before passage of the Act, and in FCC rulings immediately following passage of the Act.
A few other things of note. First, Hansen said he used to be a telemarketer himself in the early 2000’s. He talked a lot about how good he was at complying with the TCPA, and that he would never, ever call a consumer without their consent. Doesn’t really have to do with what the FCC was asking about, but neat I guess. Second, he took a similar position as Abbas & Co. on smartphones. He said that smartphones aren’t an ATDS when it comes to voice calls, but suggested that the FCC should create a “common-sense” exception for group texting.
Justin Holcombe Comment
Georgia lawyer Justin Holcombe submitted a comment urging the FCC to continue to follow its 2003 reasoning on what constitutes an ATDS. Again, lots of word parsing on what the phrase “using a random or sequential number generator” modifies that I won’t bore you with here.
On the topic of smartphones, the issue again came down to whether the group text function makes a smartphone an ATDS. Holcombe says that group texts are a “closer call”, and urges the FCC to adopt an exception for group messages that are not sent for telemarketing purposes originating from a personal cell phone. So under Holcomb’s approach, it seems I’d violate the TCPA by texting my contacts to see which one of my friends wanted to buy my extra Fleetwood Mac tickets.
Bottom line, Holcomb urges the FCC to interpret the ATDS consistent with Marks as a device “that stores telephone numbers and automatically calls from a database of stored telephone numbers”, and thinks that group texts sent from a cell phone for “telemarketing purposes” also qualify as calls made with an ATDS.
Joe Shields/Private Citizen Inc. Comment
Joe Shields is a spokesperson for Private Citizen Inc., an organization with a long history of advocating for regulation of the telemarketing industry. Shields submitted a vociferous comment in which he accused “special interest groups” of trying to “neuter the TCPA entirely so they can bombard Americans with billions of unwanted automatically dialed calls on their cell phones.”
What’s most notable is the organization’s response to the question of whether a smartphone is an ATDS. According to Private Citizen, the answer “is a very loud YES because a cell phone is a powerful computer than can do many things.” POWERFUL I say!
This is no doubt the most extreme position taken by any commentator on smartphones. According to Private Citizen, that little device in your pocket there is an ATDS, and subject to regulation under the TCPA without any qualification or exception. Yikes.
After reading through the Shields comment, NCLC came off as pretty tame. They take similar positions as the rest of the commentators on the definition of an ATDS and urge the FCC to adopt the definition of an ATDS set forth in Marks for reasons like Congressional intent and grammar. The points they make are very similar to the ones made in the Three Musketeers’ comment, so I won’t repeat them here.
On the topic of cell phone use, the NCLC suggested the Commission should find the TCPA to cover smartphones that are “actually used to make multiple calls or send mass texts,” but that the TCPA does not cover “smartphones not used in these ways.” And that’s actually a really good point. What the NCLC is saying is that any autodialing functions of a smartphone device must actually be used in order for the use of that device to be regulated as an ATDS under the TCPA. I agree complete with the NCLC on this point (did I just say that?), but why limit it to smartphone use alone? How is the logic any different when it comes to other types of computing devices? It’s not. And there’s no reason to distinguish between one type of computing device – a smartphone – from any other used to make telephone calls or send text messages.
In fact, the NCLC refers to a smartphone as a “box with multiple functions”. That’s an… interesting take on a smartphone, but what it really shows that a smartphone is no different than any other device used to call or text consumers. Except maybe the box might be bigger. Specifically, the NCLC urges the commission to “analyze the particular one of these many functions the caller is using, and ignore the functions that the caller is not using.” Wow. I honestly couldn’t have said it better myself, especially since this logic applies equally to any “box” that performs “multiple functions” – not just smartphones.
But in any event, watch out folks. It looks like the consumer-side lawyers and trade organizations are gunning hard to regulate that little “box with multiple functions” sitting in your pocket.