Almost a year ago, we posted a client alert saying that it looked like the FCC might be getting ready to issue some guidance on what constitutes an automatic telephone dialing system (“auto- dialer”) under the TCPA. We were wrong; confusion has continued to reign; compliance has continued to be difficult; and plaintiff class action lawyers have only stepped up their exploitation of the term’s ambiguity.
Now, we again have some reason to hope that clarification might come soon (assuming that the government shutdown is short-lived!). Last year, we based our optimism on the Commission releasing a flurry of Public Notices, putting out for comment seven pending Requests for Declaratory Rulings related to the TCPA, the majority of which sought interpretation of how the TCPA’s definition of an auto-dialer applied in a variety of circumstances that have resulted from technological developments in the decade since the TCPA was enacted.
One of the most watched of those Requests was submitted by Communication Innovators. CI had petitioned in early June 2012 for a ruling that predictive dialers without the current capacity to generate and dial random or sequential numbers could be used to place non-telemarketing calls without prior express consent, and were not auto-dialers within the TCPA’s definition. In May, we even got word that a draft order on the CI request (and the auto-dialer issue) was “circulating” among the Commissioners for their consideration. But then, silence prevailed over the summer months.
On the evening of September 27, though, the FCC released an exchange of correspondence between several Members of Congress and the FCC Chair (and the Acting Chief of the Consumer and Governmental Affairs Bureau), in which the Commission repeated that “A draft order to resolve the [CI] Petition is under consideration by the Commission, and Communication Innovators has met with the staff recently to discuss the matter.”
The Congressional correspondence was dated June 19 and the FCC’s response, not released until September 28, was dated September 10. Could it be that the FCC is finally getting ready to publish an Order and, depending on the length of the government shut-down, that we might see something before October 16, the effective date of the FCC’s rules requiring prior written express consent before using an auto-dialer to make telemarketing calls to mobile phones (or leave pre-recorded telemarketing messages on residential landlines)?
While the CI petition is limited on its face to non-telemarketing calls, one would think that any clarification of the definition of an auto-dialer would be relevant to telemarketing and non-telemarketing calls alike. On the other hand, perhaps the FCC is considering the creation of a limited exception that would narrow the definition of an auto-dialer only in the case of non-telemarketing calls made to existing customers for the purpose of debt collection, or for providing information.
Guidance on the issue before October 16 would be most welcome, of course. But with recent reports that the FCC is operating with a staff of only 38 employees deemed “essential,” hope for any timely clarification is fading fast. All entities that do any telemarketing using auto-dialers (as most broadly defined) or pre-recorded messages, therefore, should make sure that they are prepared to meet the Commission’s new requirements in the next two weeks.