By James E. Dunstan & Charles Kennedy
August 15, 2018 at 5:00 am ET
Everyone hates telemarketing calls. Yet when we’ve just filled a vital prescription online, we want to get that call from the pharmacy telling us it’s ready for pick-up. And when there’s a security breach impacting millions of people, we demand that we be contacted as quickly as possible so we can take immediate steps to safeguard our personal identity. What do all these scenarios have in common?
They all implicate “automatic telephone dialing systems” – technologies that allow customer service representatives to quickly retrieve and dial ten-digit telephone numbers without manually inputting each digit. As is so often the case, these technologies can be used for good or for evil. Finding the right balance when it comes to ATDS has been a difficult job for the Federal Communications Commission, which was tasked by Congress to implement provisions of the Telephone Consumer Protection Act in 1991.
When Congress drafted the so-called robocall provisions of the TCPA, it sought to discourage telemarketers’ misuse of a specific harmful technology: the random or sequential number generator, which can produce lists of telephone numbers with no common characteristics except their adherence to the format of the North American Numbering Plan. Many numbers generated in this way will not even have been assigned to telephone carriers or their customers; many will have been assigned to emergency, medical, public safety or other services that could become unavailable for their intended purpose if inundated with telemarketing calls. When lists of numbers generated randomly or in sequence are coupled with automatic dialing devices that rapidly initiate high volumes of calls, the result is the very harms that Congress rightly identified as a threat to public safety communications.
The FCC, however, in an attempt to protect the public from robocalls, expanded the ATDS definition over the years to the point that by 2015, it encompassed virtually every smartphone in America. As the 2018 D.C. Circuit Court decision that overturned the FCC’s ATDS interpretation in ACA v. FCC concluded: “It cannot be the case that every uninvited communication from a smartphone infringes federal law, and that nearly every American is a TCPA-violator-in-waiting, if not a violator-in-fact.”
But the damage done by the FCC’s interpretation of ATDS technology was not limited to the extreme case of a smartphone user technically violating the TCPA. Because the TCPA contains a private right of action and allows for statutory damages, an entire cottage industry of TCPA litigation has grown up; and rather than face millions in statutory damages in class action suits, many large companies have had to cobble together dialing technologies that explicitly put humans (and human errors) into the loop so they can claim that the dialing is not automatic. These pointless measures increase the cost and complexity of the dialing process, and hinder legitimate customer service reps from efficiently contacting customers.
With the remand from the ACA decision, the FCC has a chance to get the balance right. The vast majority of commenters in the FCC remand proceeding called for a more straightforward rule that sticks to Congress’ definition. A bipartisan letter from seven senators also supports this narrow approach. A few groups, apparently hoping the FCC would ignore the ACA court’s mandate, called on the commission simply to reaffirm its flawed interpretation. And a few comments were filed by TCPA class-action lawyers hoping to keep the gravy train chugging along.
TechFreedom, along with others, pointed out in comments that true relief from unsolicited and unwanted robocalls comes not from an expansive definition of automatic dialers, but from vigorous enforcement of the “Do Not Call” lists by the FCC and Federal Trade Commission. Congress already gave those agencies strong tools. There is no need to stretch the language of the TCPA in ways that disrupt or foreclose efficient communications technologies. And as then-Commissioner Ajit Pai stated in his dissent to the 2015 order, the statutory ATDS language has already accomplished its goal: “Congress expressly targeted equipment that enables telemarketers to dial random or sequential numbers in the TCPA. If callers have abandoned that equipment, then the TCPA has accomplished the precise goal Congress set out for it.”
It’s time for the FCC to declare victory and move on work with the FTC to protect consumers through enforcement of the Do Not Call registries.
James E. Dunstan serves as the general counsel to TechFreedom and heads his own firm Mobius Legal Group. Charles Kennedy is an adjunct fellow for TechFreedom and founder of the Kennedy Privacy Law Firm.
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