October 19, 2020

Volume X, Number 293

October 19, 2020

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

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.

Copyright 2020 K & L GatesNational Law Review, Volume VIII, Number 130


About this Author

Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

Gregory Blace, KL Gates Law Firm, Class Action Litigation Attorney

Mr. Blase is a partner in the Boston office of K&L Gates where he is a member of the firm's Class Action Litigation Defense group. Mr. Blase has experience in complex commercial litigation, and has represented mortgage lenders, servicers and other financial institutions in class action and individual suits under the Telephone Consumer Protection Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, Fair Housing Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, and various state unfair and deceptive practices statutes.

Joseph C. Wylie II, KL Gates Law Firm, Commercial Litigation Attorney

Mr. Wylie’s practice focuses on complex class-action defense and complex commercial litigation with a particular emphasis on consumer and securities matters. He represents clients in defending against a wide range of individual and class-action consumer claims, including consumer fraud actions and claims brought under the Telephone Consumer Protection Act. He also represents investment advisers and mutual fund families in connection with government investigations and investor claims, including claims made under the Investment Company Act. Mr. Wylie also represents...

Molly K. McGinley, KLGates Law Firm, Complex Litigation Attorney

Molly K. McGinley concentrates her practice at K&L Gates in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation and consumer class action defense. Ms. McGinley is a member of the firm’s Securities and Transactional Litigation Practice and Class Action Litigation Defense Groups. Ms. McGinley has litigated in numerous state and federal jurisdictions, representing a broad range of clients, including small companies, Fortune 500 Companies and investment advisers. She has handled various commercial...

Pamela Garvie, KL Gates Law Firm, Public Policy Attorney

Ms. Garvie represents transportation, media, retail, and other business clients before the Congress and federal agencies on issues dealing with economic, safety, and security regulation, advertising and programming restrictions, and taxes and trade.  She also provides customized intelligence and analysis to institutional investors and hedge funds on a broad range of federal legislative and regulatory activities that impact their investments.  Among other matters, she led the firm’s successful efforts to create federal funding programs in rail safety and...