The Federal Communications Commission (FCC) has issued a Public Notice seeking comment on the Telephone Consumer Protection Act (TCPA) definition of “automatic telephone dialing system” (or “autodialer”), potential liability for calls to reassigned phone numbers, and related issues following the D.C. Circuit’s recent decision vacating certain parts of the FCC’s 2015 “omnibus” TCPA declaratory ruling. Comments are due June 13, 2018, and the reply deadline is June 28, 2018.

The “Omnibus Order” reviewed in ACA International v. FCC addressed nearly two-dozen petitions filed with the FCC (explained in our advisory here) arising under the TCPA, which at its core regulates calls and texts from autodialers and prerecorded messages, primarily to cellular phones, do-not-call restrictions, and unsolicited fax ads. As previously explained, the ACA International decision involved only four of the many issues the Omnibus Order addressed:  what constitutes an autodialer from which calls/texts to cell phones are prohibited absent recipient consent or an emergency, what happens when consent is obtained for a phone number that is later reassigned to a new nonconsenting user, how consent can be withdrawn, and exceptions to consent for healthcare-related calls. The D.C. Circuit in ACA International vacated the Omnibus Order’s adoption of a broad autodialer definition based on the “potential” capacity of a device to store or generate numbers to be called and to dial them, and its regime allowing “one free call” to reassigned numbers before liability attaches; the court upheld the FCC’s ruling allowing withdrawal of consent using any reasonable means, and its treatment of the healthcare exception.

The Public Notice seeks comment on how to refine the definition of automatic telephone dialing systems to avoid the “capacious” reach of the Omnibus Order’s approach based on “potential capacity,” which, the Court said, conceivably reached every smartphone in use by consumers.  The Notice also seeks comment on a recently filed petition by the U.S. Chamber Institute for Legal Reform, which asked the FCC to adopt a far narrower definition in the wake of ACA International.

The Notice also seeks comment on the reassigned numbers issue, including how to determine who is the “called party” – the person the caller/texter intended to reach, or the person actually reached – and potential liability for post-reassignment calls/texts, though the latter issue is equally likely to be resolved by a separate proceeding recently launched by the FCC to consider whether a reassigned numbers database should be created, and if a safe harbor should be granted to those using it. In addition, though the D.C. Circuit affirmed the Omnibus Order on this point, the Notice seeks comment on refining permissible means of revoking consent. Last, it also seeks input on the definition of “persons” regulated by the TCPA, which may impact the scope of parties potentially liable for violations, such as government actors and contractors operating on their behalf.