In a previous blog post, we examined the “mixed bag” result of the D.C. Circuit Court of Appeals opinion in ACA International v. Federal Communications Commission. The ACA International decision narrowed the scope of potential liability for businesses under the Telephone Consumer Protection Act (TCPA) by striking down inconsistent and overly broad portions of the Federal Communications Commission’s (FCC) guidance regarding the definition of an automated telephone dialing system (ATDS). Prior FCC orders’ extraordinarily broad interpretation of an ATDS had the effect of encompassing smartphones within the provisions of the TCPA, resulting in potential liability for texts and phone calls from ordinary consumers. The D.C. Circuit’s decision to invalidate the FCC’s guidance without providing lower courts with a clearer ATDS definition has spawned confusion and uncertainty among district courts, and created more questions than answers.
After overturning several inconsistent portions of the prior FCC orders, the ACA International court acknowledged that numerous questions remain regarding the proper interpretation of the TCPA, including, among others:
Only two federal appeals courts have issued opinions since ACA International was decided in March of this year. In King v. Time Warner Cable Inc., the Second Circuit Court of Appeals’ view of “capacity” under the TCPA focused on whether a dialing system has “the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers” without additional modifications, regardless of whether the auto-dialing capabilities were used for the offending call. The Third Circuit Court of Appeals reached a similar conclusion in Dominguez on Behalf of Himself v. Yahoo, Inc., concluding that courts should analyze the extent of modification necessary to obtain autodialing capabilities. Dominguez tracked the analysis in ACA International, in which the D.C. Circuit appeared to draw a distinction between a device that could obtain the ability to generate and dial random numbers based on “flipping of a switch” versus a “top-to-bottom reconstruction of the equipment.” This issue is one of the few for which ACA International provided specific guidance.
The meaning of the phrase “random or sequential number generator” and whether that applies to predictive dialers is not addressed in King or Dominguez. The Second Circuit explicitly left such “complicated questions” to be addressed by the district court upon remand.
King and Dominguez serve as recent evidence that the TCPA continues to pose significant risks to unwary businesses in the aftermath of ACA International. The D.C. Circuit’s refusal to provide guidance to lower courts will likely result in continued uncertainty for the foreseeable future. In this environment, pertinent policies and procedures and dialing software capabilities must be continually reassessed to ensure their compliance with both evolving case law and future FCC guidance, including:
A proactive compliance approach is the best defense against the potentially calamitous consequences of failing to promptly respond and adapt to the shifting TCPA landscape.