No FCC Action Likely Soon Providing TCPA Clarity, Say O'Rielly, Others

The FCC likely won’t act soon to provide additional clarity on Telephone Consumer Protection Act rules, agency officials said this week. Commissioner Mike O’Rielly, a big advocate of addressing the rules, told us he has little hope for quick action: “I can’t say that I’m optimistic.” Other officials agreed with O'Rielly.

Others aren't waiting. Thursday, states and telecoms announced their own robocall pact (see 1908220060). Last year, the FCC invited further input on defining what's an automatic telephone dialing system (ATDS) covered by TCPA restrictions, following a 9th Circuit U.S. Court of Appeals ruling that interpreted ATDS broadly, siding with a consumer's text-messaging complaint in Marks v. Crunch San Diego, No. 14-56834 (see 1809210029). The other big case is the U.S. Court of Appeals for the D.C. Circuit’s decision last year in ACA International v. FCC, No. 15-1211 (see 1803160006), which shot down two key agency decisions from 2015 and affirmed two others.

“I’ve talked about the need for addressing the remand for quite a while,” O’Rielly said: “I’ve talked about addressing the 30-some petitions that are out there. … I’ll still keep trying. I’m kind of not sensing we’re going to see an immediate resolution.” The agency didn't comment.

Chairman Ajit Pai dissented and O’Rielly partially dissented on the 2015 order and declaratory ruling (see 1506180046). “Rather than focus on the illegal telemarketing calls that consumers really care about, the order twists the law’s words even further to target useful communications between legitimate businesses and their customers,” Pai said then, warning the net effect would be more TCPA lawsuits. Industry observers predicted when Pai became chairman in 2017 that he would seek changes to the ruling. He hasn't acted.

The FCC “has now failed to act … nearly a year and a half later” on ACA, said Leah Dempsey, lead plaintiff ACA International's vice president-federal advocacy. “Compliance expectations remain onerous leaving many important and legitimate Americans businesses vulnerable to frivolous class-action litigation,” Dempsey said: “The FCC should put politics aside, and serve the millions of Americans who are burdened by its past interpretations and unclear requirements, which have been found by courts to be arbitrary and capricious.”

Ballard Spahr's Joel Tasca, who defends financial institutions from class-actions, said industry needs clarity. “There was a clamoring for guidance from the FCC because the ACA decision left a void on a number of issues,” he said: “It’s unfortunate that we haven’t gotten any guidance at this point. Different circuits now have different laws.”

The most noteworthy split is between the 9th and 3rd circuits on what constitutes an ATDS, Tasca said. The 9th “sweeps in predictive dialers” while the 3rd doesn’t, he said. “Whether predictive dialers are covered is particularly important to businesses … because they need to know whether they can call their own customers to collect money,” he said: In the 9th Circuit, you can’t use a dialer without potentially running afoul of the TCPA. “It’s sort of a mess, particularly for companies that are operating on a national level,” Tasca said. “They’re subject to a patchwork of laws.” Tasca is based in Las Vegas, in the 9th Circuit, considered friendly to class-action litigants.

“The TCPA’s private right of action is allowing plaintiffs’ lawyers to set policy nationwide, and this will continue until the FCC takes action,” said Mark Brennan, lawyer at Hogan Lovells. “Many are surprised that the FCC hasn’t moved a single major TCPA item during Pai’s entire tenure as chairman, especially because of his strong leadership on these issues as a commissioner.”

The agency seems to be focused on caller ID authentication and robocall blocking applications, said Fletcher Heald’s Seth Williams: “There’s general agreement at the commission, and among many in the industry, that these technologies can help reduce unwanted robocalls.” Defining autodialer “is a much more difficult question and has the potential to dramatically change how the TCPA applies to current robocalling platforms, so the commission may simply be addressing what it views as the easier issues first,” Williams said. “Given the D.C. Circuit’s decision in ACA, the commission also may be taking its time on the definition question to ensure its definition is clear and supported by the statute and the record.”