The tug-of-war over the Telephone Consumer Protection Act’s (TCPA) autodialer definition started two years ago after the ACA International v. FCC decision came down. Since then, a patchwork of court interpretations has emerged that grows more complex by the day.
The split between the various federal appeals courts deepened two weeks ago. The Eleventh Circuit joined the D.C. and Third Circuits by taking a balanced and reasonable approach to what does and does not constitute an autodialer under the TCPA. The Ninth Circuit went the opposition direction in 2018 when it broadened the definition so much that nearly any device could be considered a violation.
The Federal Communications Commission (FCC) must play a role now. A clear definition is badly needed, and a letter just sent by the U.S. Chamber Institute for Legal Reform (ILR), and 18 other organizations, provides a path forward.
In the letter, ILR urges the FCC to:
1) Make clear that to be an autodialer, the equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention, and
2) Find that only calls made using actual autodialer capabilities are subject to the TCPA’s restrictions.
These two changes would introduce certainty into a litigation arena that evolves every day. Chairman Ajit Pai called the TCPA “the poster child for abusive litigation.” This will continue to be the case until action is taken.
Of course, it’s imperative that policymakers continue to take action to stem the tide of scam robocallers. Unfortunately, the companies who find themselves on the wrong side of a TCPA lawsuit are not the ones making those calls. They are the ones trying to grow their business or give existing customers time-critical updates on their purchases. Chairman Pai acknowledged this in 2015, when he said “trial lawyers have found legitimate, domestic businesses a much more profitable target” than the “telemarketers, the over-the-phone scam artists, and the foreign fraudsters.”
It’s time for a change. The FCC should take this action immediately to rein in a cottage industry of litigation against legitimate companies and business practices.