TCPA: FCC Expands Definition of Automatic Telephone Dialing System
On November 29, 2012, the Federal Communications Commission (FCC) issued a declaratory ruling in response to a petition filed by SoundBite Communications, Inc., in conjunction with the Mobile Marketing Association (MMA), finding that text messages sent in confirmation of a consumer’s opt-out request do not violate the Telephone Consumer Protection Act (TCPA). The FCC took this opportunity, however, to expand the definition of an automatic telephone dialing system (ATDS) beyond that even prescribed by statute under the TCPA.
What the FCC is touting as a “win” for businesses is nothing more than what the law is and should have been from the beginning. Namely, the FCC concluded that companies are allowed to transmit a final, one-time text to confirm receipt of an opt-out request to a consumer who has granted their prior express consent without violating the TCPA. The FCC stated in its decision that “[this] ruling ensures that wireless consumers will continue to benefit from the TCPA’s protection against unwanted, autodialed texts, while giving them certainty that their opt-out requests are being successfully processed.”
While this ruling from the FCC is a positive step forward for opt-out text messages, the FCC used the opportunity to create new, less business-friendly law. Specifically, the FCC stated that the definition for ATDS regulated by the TCPA “covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” This expanded definition goes beyond the TCPA’s definition of an ATDS and potentially includes a broader array of “autodialer” systems than would have been captured by the language of the TCPA standing alone. Under the statute, it was at least arguable that an autodialer would need to have a capacity to dial numbers at random to trigger the TCPA. Under the FCC ruling, the capacity to call at random is not a required element of a dialer technology that triggers the TCPA.
In sum, the declaratory ruling might be best viewed not as a clear pro-business “win,” but rather as one step forward and at least one step back.
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