As Facebook Arguments Loom, Other FCC TCPA Work Continues

All FCC action on the Telephone Consumer Protection Act isn’t focused on Facebook v. Duguid, to be argued before the Supreme Court Dec. 8, an FCBA webinar heard Thursday. Experts hope that case provides long-awaited clarity on what constitutes an automatic telephone dialing system (ATDS) under the TCPA (see 2011100052).

The commission is “working feverishly” to complete the TCPA exemptions and other proceedings, said Mark Stone, deputy chief of the Consumer and Governmental Affairs Bureau. “Our deadline, as in so many things under the Traced Act, is the end of the year.”

The Traced Act “places new enforcement obligations on the FCC, [imposed] a pile of new proceedings, reporting and other obligations,” Hogan Lovells’ Mark Brennan said. “The FCC got the short end of the stick in terms of the workload.” The act imposed requirements to approve call verification, reduce illegal robocalls and “enhance the overall TCPA enforcement atmosphere,” he said.

The FCC has been working on various parts of the rules mandated by Congress. They relate to Secure Telephone Identity Revisited (Stir) and signature-based handling of asserted information using tokens (Shaken) number verification requirements, a call-authentication framework, procedures for an Industry Traceback Group, a proceeding on call blocking and the current TCPA exemption proceeding, Brennan said. The agency is also working on TCPA-related issues raised by various parties, he said.

Leah Dempsey, Association of Credit and Collection Professionals vice president-federal affairs, said the most important exemption for her ACA association is the non-marketing landline exemption. “ACA worked with a group from the calling community that includes financial service providers, healthcare companies, utility providers and, really, a diverse group of callers,” she said. Most oppose a rule that would impose frequency limits on calls before TCPA prohibitions kick in, she said.

“Limiting communication, in general, … particularly during COVID-19, can be really problematic,” Dempsey said: “We have seen really a record number of inbound calls during COVID-19 because consumers have a lot of questions.” Dempsey applauded a June declaratory ruling that TCPA rules don’t apply to peer-to-peer (P2P) texts to cellphones (see 2007240076). “The FCC really didn’t go so far as to say all P2P texting is not coming from an autodialer,” she said: “It really depends on the specific technology.”

Stone noted that the P2P ruling was at the bureau level. “The bureau was trying to strictly apply what the commission has already said in the past, not trying to break any new legal ground,” he said: “It was a decision of note, but done on delegated authority.” Stone said CGB is watching what the Supreme Court has to say. ACA would still like to see more clarity in response from the FCC on a case it brought from the U.S. Court of Appeals for the D.C. Circuit (see 1803160006) on what constitutes an ATDS, Dempsey said.

Experts hope Facebook's case provides long-awaited certainty.

Clarity on what constitutes an ATDS could end much ongoing litigation, Dempsey said. “We’ve seen rulings across throughout the country … that talked about basically anything that comes from a list could be considered to be an auto-dialed call,” she said. “Even apps on your phone could be an auto-dialer or your iPhone, in general, could be an auto-dialer.” The problems are the most acute for small businesses, she said. “Because people don’t know exactly what is an auto dialer … they won’t choose to use anything close to an auto dialer.”

“The challenge for us at the FCC is taking a 1991 statute with a 1991 definition and trying as a regulator to adapt it,” Stone said: “We’re also eagerly awaiting what the Supreme Court has to say and also would welcome it if Congress has more to say.”

FCBA also heard mock arguments on the SCOTUS case.

Sergei Lemberg, managing attorney at Lemberg Law and who represents Duguid, defended the TCPA. “This law was ahead of technology,” he said. Congress “foresaw what was coming and kind of wrote it broadly," he said. "There was significant forethought.”

“We’ve got a very textualist court across all the judges,” said Devin Anderson of Kirkland & Ellis, which represents Facebook. It’s difficult to predict how justices will interpret the state of technology and its relevance to the TCPA, he said: “We’ll just have to see how it ends up playing” out. In Bostock v. Clayton County last year, Justice Neil Gorsuch said “the text means what it means and I don’t really care what was going on at the time,” Anderson recalled. “We’re just going to end up following the text.”