This article first appeared on TCPAland and is published here with permission.
As we reported a few weeks back, Congressman Pallone–who has been deftly dodging our interview requests–recently circulated a discussion draft bill called the “Stopping Bad Robocalls Act.” (Maybe if I stop picking on the name he’ll join us for a podcast interview–but I won’t.)
The discussion draft–circulated in the House–sought to, inter alia, expand the definition of automated telephone dialing system (“ATDS”) within the TCPA to include dialers that call from a list of numbers, rather than just those that use a random or sequential number generator.
For anyone that doesn’t know the back story here, its a long tale. Essentially the TCPA is designed to stop unwanted robocalls, but it was written to only apply to calls made using a random or sequential number generator because those things were the scourge of society back in 1991 when the statute was passed. But no one uses that technology to make robocalls anymore. Congress has never updated the statute or given the FCC–the regulator responsible for curbing robocall abuse–any other authority to regulate such calls. So the FCC took it upon itself to expand the reach of the TCPA to apply to calls made from lists of numbers, even though the statute doesn’t say that. The D.C. Circuit Court of Appeal recently said “you can’t do that FCC,” and sent the whole issue back to the Commission for further consideration, but this time in front of a Republican-leaning FCC that is expected to interpret the statute more narrowly, in accordance with the words of the statute. The FCC has since issued a Public Notice seeking comment on the definition of ATDS, and now you’re all caught up…
Crucially, the first court to address the issue following the ACA Int’l ruling–the one where the D.C. Circuit Court of Appeal struck down 10 years of FCC work expanding the statute– confirmed that the FCC’s prior rulings expanding the reach of the TCPA are, indeed, no longer viable. (That clarity has since been thrown into disarray, however, since the courts can’t make up their mind on the issue.) Within 30 days of that ruling, Congressman Pallone circulated his draft discussion bill. And now, a mere three weeks after the FCC sought comment on the definition of ATDS, Senator Markey has introduced a companion bill in the Senate. (You can find Markey’s bill here and Pallone’s bill here.) Isn’t it incredible how fast the government can work when it wants to?
The bottom line is this–two bills have now been introduced (one in each chamber of Congress) that, if passed, would largely moot the pending proceeding before the FCC regarding the scope of the TCPA. The new bills would expand the reach of the TCPA to cover predictive dialers–the most commonly used sort of dialers by marketers and servicers alike–although the bills would clarify that using dialers in preview or manual mode does not trigger statutory liability. That would essentially take the law back to where it was on July 9, 2015–right before the FCC expanded the statute to include every call made by every smartphone in America.
Both bills preserve the current private right of action–including the disastrous class action rights–and limit the FCC’s ability to exempt categories of calls from TCPA coverage; requiring specific factual findings and imposing calling limitations on any such exemptions. The bills also call for a new set of implementing regulations to be issued by the FCC within a year, as if it does not have anything else to do.
It will be extremely interesting to see whether or not these bills gain steam. If they do, its a pretty good bet that the Commission is working with Markey and Pallone through back channels to afford a face-saving maneuver to the FCC’s Chairman who is on record opposing the expansion of the TCPA to predictive dialers (but may not actually want to be the guy known for opening the door to a bunch more robocalls). That’s just my speculation, however.