Over the past several months, three members of the House of Representatives wrote to the Federal Communications Commission’s (FCC) Chairman Ajit Pai regarding the Telephone Consumer Protection Act (TCPA). On September 7, 2018, Chairman Pai responded to the congressmen.
The three letters addressed to Chairman Pai came from Rep. Ken Buck (R-CO), Rep. David McKinley (R-WV), and Rep. Lee Zeldin (R-NY). While worded differently, all three letters contained similar content. The letters criticize prior FCC interpretations of the TCPA for causing more problems than they solved. The prior interpretations created ambiguity that caused confusion for legitimate businesses on how to communicate with consumers and led to an increase of class action litigation that does little to help consumers. All three letters commend the FCC’s efforts on the issue of illegal robocalls.
Chairman Pai’s responses to the three letters were also extremely similar in content. The responses agree that the prior interpretations of the TCPA caused confusion. Chairman Pai pointed to his own dissent to the 2015 declaratory ruling to support his agreement with the congressmen. The Chairman stated that in response to the D.C. Circuit Court of Appeals ruling in ACA International v. FCC, the FCC sought comments on the TCPA and the definition of automated telephone dialing system. The comment period closed in June of this year and the FCC is currently reviewing the comments to assist it with further action.
Chairman Pai’s responses don't contain much detail of when and how the FCC will proceed with its guidance on the TCPA. It is nice to see that the TCPA issue is on the FCC’s radar, but it will be even better once the FCC finishes its review of comments and provides some clearer direction for their plan forward.
Update: Later today, the Ninth Circuit Court of Appeals released its decision in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018), finding that all dialers that call automatically from a list fall into the definition of an automatic telephone dialing system, and therefore are subjec to the TCPA. This puts the Ninths Circuit squarely at adds with the Third Circuit, which decided in Dominguez v. Yahoo, Inc, No. 17-1243, 2018 U.S.App.Lexis 17350 (3rd. Cir June 26, 2018) that this type of device is not an ATDS. The jurisdictional split among the circuits highlights the need for the FCC to take quick action on providing clarification or else the matter is likely to be decided by the U.S. Supreme Court.