• May 1, 2018
  • By Leonard Klie, Editor, CRM magazine and SmartCustomerService.com

Court Strikes Down TCPA Expansions

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A circuit court of appeals in Washington in mid-March struck down the Federal Communications Commission’s expansion of the definition of an autodialer, which could have encompassed smartphones, as overreaching and “utterly unreasonable.” 

In issuing its decision in the case of ACA International v. the FCC, the court rejected the assertion that any dialing equipment or device that could dial numbers using a random or sequential number generator was an autodialer. Under the FCC’s proposed definition, which was included in a 2015 amendment to the Telephone Consumer Protection Act (TCPA), smartphones could have been included in the definition because, through add-ons or downloads, they can be made to function like autodialers. 

“The TCPA cannot reasonably be read to render every smartphone an [autodialer] subject to the act’s restrictions, such that every smartphone user violates federal law whenever she makes a call or sends a text message without advance consent,” the court ruled. 

The court also vacated the FCC’s approach to calls made to phone numbers previously assigned to someone who had given consent and now reassigned to someone else. The court found that “called party” can mean “intended recipient” as well as the current subscriber, citing “reasonable reliance.”

The D.C. circuit court did, however, affirm the FCC’s interpretation of a consumers’ ability to revoke consent. “We uphold the commission’s approach to revocation of consent, under which a party may revoke her consent through any reasonable means, clearly expressing a desire to receive no further messages from the caller,” the ruling said.

Not surprisingly, the ACA, an association of collection agencies and financial institutions, was pleased with the outcome. 

“We applaud the court for making the right decision today because it supports legitimate, law-abiding businesses and recognizes that technological advancements in the ways people communicate are good for society as a whole,” said Mark Neeb, ACA International’s CEO, in a statement.

“This decision affirms that consumer interests are best served when legitimate businesses are able to contact consumers to communicate information that they want, need, or expect to receive rather than by outdated rules and regulations built for a world that no longer exists,” added ACA International’s corporate counsel, Karen Scheibe Eliason. “And ACA is pleased to see that attempts to maintain unnecessary, unwarranted, and unduly burdensome regulatory handcuffs on businesses have been thwarted.”

In an unusual response, the FCC’s current chairman, Ajit Pai, also supported the ruling. 

“Today’s unanimous D.C. circuit court decision addresses yet another example of the prior FCC’s disregard for the law and regulatory overreach. As the court explains, the agency’s 2015 ruling placed every American consumer with a smartphone at substantial risk of violating federal law. 

“Instead of sweeping into a regulatory dragnet the hundreds of millions of American consumers who place calls or send text messages from smartphones, the FCC should be targeting bad actors who bombard Americans with unlawful robocalls,” Pai added. 

The FCC chairman also reiterated his agency’s commitment to continue combating illegal robocalls and spoofing, pointing out that it proposed more than $200 million in fines for alleged TCPA violations last year alone.

The call center industry also came out in support of the ruling. 

“The FCC’s past interpretation was overly broad. We will continue to support responsible marketing practices that protect consumers and hope to see greater cooperation between the FCC and the contact center industry going forward,” stated Jim Noble, president and CEO of Noble Systems, in a statement.

“We believe this ruling is a step forward in proving much-needed clarity that will provide more fair and balanced rules to protect both the business community and consumers,” adds Mckay Bird, chief marketing officer at TCN, a provider of cloud-based call center technology. 

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