FCC Seeks Comment On What Constitutes “Capacity” As The Term Is Used In The TCPA


The Telephone Consumer Protection Act defines the phrase Automatic Telephone Dialing System (ATDS) as equipment that has the capacity:

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B) to dial such numbers.

On November 19, 2013, the FCC issued a public notice seeking comment on a Petition for Expedited Declaratory Ruling and/or Expedited Rulemaking filed by the Professional Association for Customer Engagement (PACE). The Petition seeks a Declaratory Ruling:

1. Clarifying that a dialing system is not an ATDS unless it has the capacity to dial numbers without human intervention, regardless of whether a call is initiated by entering 10 digits of a telephone number or by a one-click dialing method;

2. Clarifying that for purposes of the TCPA, the term “capacity” is limited to what it is capable of doing, without further modification, at the time the call is placed;

Alternatively, if the FCC is not inclined to issue a Declaratory Ruling, PACE seeks to have the FCC define the term “capacity” as used in the TCPA and the Commission’s rules as “the current ability to operate or perform an action, when placing a call, without first being modified or technologically altered,” and to modify the definition of ATDS in section 64.1200(f)(2) of the FCC’s rules by adding, to the end of the definition, “without human intervention.”

The FCC seeks comment on the Petition, including whether Declaratory Ruling or Rulemaking is the appropriate type of proceeding in which to consider the merits of the argument.

Comments are due: December 19, 2013

Reply Comments are due: January 4, 2014

The full Public Notice can be found here.

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