Did We Just Solve the Biggest Problem Stifling TCPA Reform?: The Czar and the Baron Knock on the FCC’s Door to Discuss an ATDS Compromise

As I wrote a few days back, it has been over a year now since the D.C. Circuit Court of Appeal handed down ACA Int’l and in all that time TCPAWorld has only become murkier and murkier. In the aftermath of that decision, the Federal Communications Commission (“FCC”) alone holds the keys to TCPA clarity.  The Courts are a complete mess. Yet we are approaching a year since the Commission first sought comment on the issue of how best to define the central phrase – automated telephone dialing system (“ATDS”)– with no answer.

The broader the ATDS definition, of course, the greater the number of TCPA lawsuits we can all expect to see. And although Plaintiff’s lawyers and others argue that a narrow TCPA leads to more robocalls, as my fact-checking of John Oliver proved last week that is just not the case. Ultimately TCPA reform benefits everyone—and it should be easy to deliver. The FCC should interpret the Act according to its plain language in order to fix the problem. If Congress doesn’t like the statute it has passed and wants to pass a new one it can—and it very well may. But until it does, the TCPA says what it says and nothing more.

Yet delivering on the promise of reigning in the TCPA juggernaut remains an elusive goal, even if it is easy enough to accomplish. The reason is simple—our national dialogue surrounding “robocalls” fails to disambiguate spam/scam/pre-recorded/random calls, on the one hand, from legitimate customer-specific contact efforts using efficient dialing technology, on the other. And with misleading late-night rants dominating the robocall narrative and mislabeled “robocall” indexes out there feeding the media hysteria –with little or no fact-checking– making these legitimate distinctions is a difficult job, but somebody has to do it.

I’ve said it before. I’ll say it again. The TCPA does nothing to prevent robocalls. The proof is in the pudding. In the aftermath of the FCC’s July 2015 Omnibus decision expanding the scope of the phrase ATDS, which the ACA Int’l court ultimately concluded covered even your smartphone—robocalls quadrupled. QUADRUPLED. The TCPA was as broad as possible but robocall volume still exploded. Why? The reason is obvious—the TCPA is enforced against legitimate American businesses, who are not the problem. But all this time money and effort is spent tinkering with the TCPA because the Plaintiff’s bar makes millions and millions of dollars every year filing TCPA lawsuits and screaming “robocalls” at every judge and jury that will listen. All the while the real robocallers — the real bad guys who pay little or no attention to the rules– rarely if ever get sued under the TCPA, since they’re too hard for private litigants to track down and collect against.

But at the end of the day identifying the problem doesn’t get us very far. What we need is a solution. A middle ground. And that is just what the Baron and I went down to the FCC to deliver last week.

Not everyone is going to like what I’m about to report. In fact, I’d imagine that just about nobody is going to like it. Which is precisely why it’s the perfect compromise position.

Here’s the deal. The Commission has previously articulated that an ATDS is a dialer that can call thousands of numbers in a short period of time without “human intervention.”   The Ninth Circuit Court of Appeals has stated that an ATDS is a dialer with the capacity to call stored numbers “automatically.”   Neither of these formulations require the statutory pre-requisites of random or sequential number generation and both pertain to the “automatic” function of a dialer—but neither define or provide guidance as to the meaning of the phrase. So let’s fix that.

Our client’s proposal to the Commissioners and staff:

The FCC should interpret the phrase ATDS to include dialers that randomly or sequentially generate numbers and dial them OR any system that dials automatically from a list without human intervention in that the system, as used, fails to achieve an abandonment rate of 3% or less of answered calls.

This formulation assures that legitimate businesses can continue to use advanced and accurate technology to efficiently contact consumers, but requires those businesses to assure enough manpower to field the calls it launches. It assures a positive consumer experience in that it reduces the number of abandoned calls consumers experience. It also harmonizes with existing telemarketing requirements regarding abandoned calls. See 47 C.F.R. § 64.1200(a)(7). And pre-recorded and random-dialed calls will remain subject to the act and require consent. As will mass-launched calls that lack agent backing. Everyone gives a little. Everyone takes a little. And a clear standard prevails.

Yes, this proposal needs refinement and we will be looking to do so through further interaction with the Commission. We’ll also be looking to build a robust record on the issue and to consider as many possible consequences of the new ATDS formulation as we can imagine up. Additional information will follow in further meetings and ex partes. However, this compromise would harmonize customer outreach with an existing telemarketing standard and provide a target for legitimate businesses that use dialer technology to contact existing customers. It’s a much needed win win.

While at the Commission we also pushed for clarity around revocation of consent— asking that the FCC adopt a rule allowing account servicers to direct consumers—through conspicuous disclosures—to a reasonable revocation channel, such as a website or a toll free number and rely on that channel.  We also reminded the Commission that it is still unclear what debts qualify as “owed to or guaranteed by the United States” for purposes of the amended TCPA exemption for calls placed to collect on such debt. We urged the Commission, as other commenters have done, to promptly clarify that Fannie Mae and Freddie Mac loans be included in the definition.

And at the end of the day, what we all need most here in TCPAworld is clarity. I grow weary of seeing my friends and colleagues suffer as uncertainty makes it impossible to adopt failsafe TCPA policies and procedures. I grow tired of seeing irreconcilable verdicts in cases that are essentially identical—as if justice were meted out at random in TCPAWorld rather than in accord with traditional standards of certainty and fairness. I grow (what’s another word for tired?)… well you get the idea. This nonsense has got to stop. The only people benefiting from the current state of uncertainty are consumer lawyers and guys running TCPA-related websites.

Hmm.. wait a minute. Maybe uncertainty isn’t such a bad thing after all. Have you subscribed to TCPAWorld.com yet?