FCC Seeks Comment in Wake of Pivotal TCPA Court Case

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The FCC has released a public notice seeking comment on several issues related to the agency’s interpretation and implementation of the Telephone Consumer Protection Act (TCPA). The TCPA was enacted in 1991 as a way for Congress to address undesired “robocalls.” The law prohibited the use of automated dialing equipment when dialing wireless telephone numbers, unless the caller obtained the prior consent of the call’s recipient. Additionally, the TCPA empowered the FCC to promulgate rules and orders interpreting the TCPA. Acting under that authority, the Commission in 2015 adopted an order interpreting the TCPA which was subsequently challenged in the D.C. Circuit Court of Appeals. The Association of Credit and Collection Professionals (ACA), the party that brought the legal challenge and prevailed against the FCC in a 3-0 decision, challenged the agency’s definition of an auto-dialer, a reasonable manner approach to revocation of consent, and the one-call exemption for re-assigned numbers. In light of the FCC having many of its earlier interpretations and regulations overturned, the public notice seeks comment on various matters, including: (1) what constitutes an “automatic telephone dialing system”, or ATDS; (2) how to interpret the term “capacity” in light of the court’s guidance; (3) the functions a device must be able to perform to qualify as an ATDS; (4) how to treat calls to reassigned wireless numbers under the TCPA; (5) how a called party may revoke prior express consent to receive robocalls; and (6) three pending petitions for reconsideration of the FCC’s Broadnet Declaratory Ruling and 2016 Federal Debt Collection Rules, all of which involve several key TCPA issues. Comments are due on or before Wednesday, June 13, 2018 and reply comments are due Monday, June 28, 2018.

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