Can You Hear Me Now? Important Considerations for Avoiding Penalties under the TCPA after ACA International

In a previous blog post, we examined the “mixed bag” result of the D.C. Circuit Court of Appeals opinion in ACA International v. Federal Communications Commission. The ACA International decision narrowed the scope of potential liability for businesses under the Telephone Consumer Protection Act (TCPA) by striking down inconsistent and overly broad portions of the Federal Communications Commission’s (FCC) guidance regarding the definition of an automated telephone dialing system (ATDS). Prior FCC orders’ extraordinarily broad interpretation of an ATDS had the effect of encompassing smartphones within the provisions of the TCPA, resulting in potential liability for texts and phone calls from ordinary consumers. The D.C. Circuit’s decision to invalidate the FCC’s guidance without providing lower courts with a clearer ATDS definition has spawned confusion and uncertainty among district courts, and created more questions than answers.

After overturning several inconsistent portions of the prior FCC orders, the ACA International court acknowledged that numerous questions remain regarding the proper interpretation of the TCPA, including, among others:

  • Whether the definition of a “random or sequential number generator” includes a scenario where a business uses software to auto-dial from a list of phone numbers (known as “predictive dialers”), such as in the case of debt collectors, as opposed to generating random phone numbers;
  • Whether a predictive dialer would qualify as an ATDS in a scenario where a list of numbers is generated separately from a separate device and loaded into the predictive dialer; and
  • Whether a call must actually be made using the automated-dialing technology in order to trigger the TCPA, or whether the equipment must simply have the capacity to do so.

Only two federal appeals courts have issued opinions since ACA International was decided in March of this year. In King v. Time Warner Cable Inc., the Second Circuit Court of Appeals’ view of “capacity” under the TCPA focused on whether a dialing system has “the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers” without additional modifications, regardless of whether the auto-dialing capabilities were used for the offending call. The Third Circuit Court of Appeals reached a similar conclusion in Dominguez on Behalf of Himself v. Yahoo, Inc., concluding that courts should analyze the extent of modification necessary to obtain autodialing capabilities. Dominguez tracked the analysis in ACA International, in which the D.C. Circuit appeared to draw a distinction between a device that could obtain the ability to generate and dial random numbers based on “flipping of a switch” versus a “top-to-bottom reconstruction of the equipment.” This issue is one of the few for which ACA International provided specific guidance.

The meaning of the phrase “random or sequential number generator” and whether that applies to predictive dialers is not addressed in King or Dominguez. The Second Circuit explicitly left such “complicated questions” to be addressed by the district court upon remand.

King and Dominguez serve as recent evidence that the TCPA continues to pose significant risks to unwary businesses in the aftermath of ACA International. The D.C. Circuit’s refusal to provide guidance to lower courts will likely result in continued uncertainty for the foreseeable future. In this environment, pertinent policies and procedures and dialing software capabilities must be continually reassessed to ensure their compliance with both evolving case law and future FCC guidance, including:

  • Automation – Businesses should consider available options for software that requires human intervention to dial consumers’ phone numbers and does not possess the capacity to generate random phone numbers, either currently or with slight modification.
  • Controls – Businesses should ensure that consumers’ cell phones are flagged to avoid auto-dialed and pre-recorded calls to their cell phones. It is important to note that companies can still be held liable for calls to consumers’ home phones if the consumer is charged for the call (known as the TCPA’s “call-charged provision”).
  • Consent – Consent is an absolute defense, and the status of the consumers’ consent to receive phone calls should be monitored at all times. The ACA International decision reinforced that consumers can revoke consent “through any reasonable means” expressing a desire to cease communications, which presumably includes oral revocation but involves a “totality of the facts and circumstances” analysis. If the consumer revokes his/her consent, businesses should terminate auto-dialed and pre-recorded messages to that consumer immediately. In most jurisdictions, written consent can be established through a business relationship in which the consumer provides his/her cell phone number in conjunction with that relationship.

A proactive compliance approach is the best defense against the potentially calamitous consequences of failing to promptly respond and adapt to the shifting TCPA landscape.