Here’s something a lot of folks—even  so-called TCPA “experts—tend to overlook.

Most people realize that the TCPA contains two separate provisions with respect to the use of regulated technology to place calls to phone numbers; one applies to cell phones and the other to landlines.  But most overlook that the two provisions contain radically different triggers for liability.  In the context of calls to landlines, a violation occurs the moment a call is “initiate[d].”  See 47 U.S.C. § 227 (b)(1)(B).  In the context of calls to cell phones, on the other hand, a violation cannot occur until the call is actually “ma[d]e” — not merely “attempted” or “initiated.”  See id. § 227(b)(1)(A).

While neither the phrase “make a call” or “initiate a call” are defined by the TCPA,  it has been observed that “initiating” a call encompasses somewhat broader conduct than “making” a call.  See, e.g., Desai v. ADT Sec. Servs., Inc., No. 11-1925, 2011 WL 2837435, at *1 (N.D. Ill. Jul 18, 2011).  That is, the word initiate means “to begin or to set going,”  Zhu v. DISH Network LLC, 808 F. Supp. 2d 815, 819 (E.D. Va. 2011), whereas the word “make” implies successful completion.  Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 57 (Minn. 2013) (defining “make” to mean “to cause to exist or happen; bring about”).  Even in the broader context of “initiating” a call, however, the FCC has directly ruled that a party does not “initiate a call” until “it takes the steps necessary to physically place a telephone call . . . .”  2015 Omnibus TCPA Ruling, ¶ 26, 2015 WL 4387780, at *10.  As “initiating a call” means, in essence, “attempting a call,” a fortiori, “making a call” requires something more.

Now here’s where things get interesting. The term “call” is somewhat sui generis in that, unlike most verbs, it can be applied to mean either the successful act of “calling” or the mere attempted act of “calling” depending on the context.  See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) (noting that Webster’s dictionary’s definition of “call” as “to [successfully] communicate with or try to get into communication with a person by telephone”).  Think about it. When you “kick” a ball your foot has actually come in contact with the ball. You haven’t kicked the ball just because you started to kick it and then someone moved the ball and you fell over, ala Charlie Brown. Yet we still say we “called” someone, even if we fail to reach that person. It is very strange if you think about.

Congress appears to have thought about it. And the TCPA makes clear which use of the word “call” is intended in each of the two sections.  For calls to cell phones, only those calls that result in a successful communication via telephone appear to qualify.  That is, tracking Satterfield, a call is only “made” when a party is actually “communicate[d] with.”  On the other hand, liability for true “robocalls” to landlines—at the heart of what the TCPA was designed to combat—attaches the instant the robot “initiates” a call by “try[ing] to get into communication with” a customer.  Thus, the statute adopts the dichotomy recognized in Satterfield in a manner consistent with common sense and practical policy considerations.

But some loose language used by the FCC in its ruling implementing the 2016 Bi-Partisan Balanced Budget Act (“BBA”) Amendment may have changed all of that, and quite by accident it seems. The Commission appears to now be saying that “making” a call and “initiating” a call are the same thing after all. But it is not entirely clear. (So what else is new?)

Take a look at paragraph 28 of the BBA ruling. (It can be found here.) The Commission says that “[a] call is any initiated call… [t]he call need not be completed, and need not result in a conversation or voicemail.” Par. 28. Ok. Read narrowly the FCC is merely stating the definition of an “initiated call,” which is consistent with the analysis laid out above. But look at footnote 90. The ruling suggests that its implementing rule states that no person or entity may “initiate any telephone call” to the specified recipients. FN 90, citing 47 C.F.R. § 64.1200(a)(1) (emphasis added). Well that is true. Way back in 1992 the Commission issued its original TCPA implementing rulings that said liability attaches where a call is initiated. But that was just intended to track the statute right? I.e. the regulation doesn’t expand the reach of the TCPA does it?

Well, for the first time and 25 years later, the FCC appears to be saying that the regulation is broader than the statute after all. Specifically the FCC seems to be merging the words “made” and “initiate” into a single pot., ignoring the Congressionally-created distinction between them. Again, its not entirely clear. An alternate explanation might be that the Commission is merely using the word “initiate” as the criteria for the per-month call limitation count while preserving the rather obvious distinction between making and initiating a call. Only time will tell.

But what is clear, however, is that the Commission may have just launched another TCPA controversy with its loose language.