Last month, Federal Communications Commission (FCC) Chairman Ajit Pai responded to letters from three representatives on the need for Telephone Consumer Protection Act (TCPA) clarity and the ongoing issue of robocalls. On October 4, 2018, Rep. Michael Burgess (R-TX) added his voice to the conversation by also sending a letter to Chairman Pai.
Rep. Burgess’s letter echoes the sentiments of those sent previously by Rep. Ken Buck (R-CO), Rep. David McKinley (R-WV), and Rep. Lee Zeldin (R-NY). The Burgess letter commends the FCC on its efforts to crack down on illegal robocalls while also stressing the need for the FCC to clarify and modernize the TCPA, especially after the ACA International v. FCC decision. Rep. Burgess urged the FCC to create a TCPA framework that “protects consumers while maintaining the ability of good faith callers to contact customers.”
Since Rep. Burgess’s letter is similar in content to the prior letters, it is likely that Chairman Pai’s response will be similar as well. In his prior responses, Chairman Pai stated that the FCC was seeking comment on the TCPA post-ACA Int’l. v. FCC, but did not provide any clear indication of how and when a solution would arrive.
Since Chairman Pai’s responses to the initial three letters, two events occured.
First, the Ninth Circuit ruled in Marks v. Crunch San Diego that a device that dials from a list of telephone numbers is considered an automated telephone dialing system (ATDS) per the TCPA, creating a jurisdictional split on the issue with the Third Circuit. Crunch San Diego filed a petition for an en banc rehearing of the case in the Ninth Circuit, which is still pending.
Second, the FCC issued a request for comments on how the FCC should reconcile the split in interpretations by the courts of what constitutes an ATDS. This request had a relatively short comment period, with initial comments due on October 17.
With all of this activity on the issue, hopefully FCC guidance will be issued soon.