The Telephone Consumer Protection Act (TCPA), which generally prohibits certain calls to cell phones made with an Automatic Telephone Dialing System (ATDS), has created considerable compliance challenges for businesses, and ample opportunities for litigation. The law has been interpreted in broad and ambiguous ways, and companies that use auto-dialing technology to make calls are subject to significant risk because statutory damages for TCPA claims in class litigation can easily run into the millions of dollars. Furthermore, the politics of the TCPA pose a challenge, because, as the Federal Communications Commission (FCC) has pointed out, unwanted calls and texts are the number one consumer complaint to the FCC. It is therefore not surprising that the FCC Chairman plans to have the FCC vote on declaratory rulings on pending TCPA petitions on June 18. The proposed rulings themselves are not available publicly, but FCC Chairman Wheeler released a “fact sheet” on the rulings that suggests that the scope of TCPA liability may be further expanded.

Over the past few years, companies and industry trade groups have filed petitions with the FCC seeking clarifications on various aspects of the TCPA. Often these entities are faced with litigation that may hinge on the outcome of the FCC’s interpretation. Issues raised by petitions include the definition of an ATDS, the nature and scope of consent, and the treatment of phone numbers that are reassigned to a new individual.