ACA International, along with 17 other trade groups, yesterday submitted a petition to the Federal Communications Commission, seeking a declaratory ruling on what an automatic telephone dialing system (ATDS) actually is.
The petition is a follow up to a ruling in a lawsuit filed by ACA International against the FCC that was issued in March by the Court of Appeals for the District of Columbia. In its ruling, the Appeals Court set aside a definition of an ATDS that the FCC developed in another declaratory ruling, which was issued in July 2015. After that ruling was issued, ACA immediately filed its suit against the FCC, saying the agency had overstepped its constitutional authority.
Back in 2015, the FCC had defined an ATDS as any technology that had the “capacity” to perform the functions of an autodialer. Many had demonstrated that an everyday smartphone could be defined as an autodialer based on the FCC’s ruling.
After the Appeals Court ruling in March overturned the definition, the next logical step was to create a new definition of an ATDS to replace the one that the Appeals Court said could not be used anymore.
Joining ACA International in its petition are a number of other trade groups from the financial services industry, including the American Bankers Association, the Mortgage Bankers Association, the Consumer Bankers Association, the American Association of Healthcare Administrative Management, the U.S. Chamber of Commerce, and the American Financial Services Association.
In its petition, the groups make a number of suggestions about how an ATDS should be defined. Those suggestions are:
- Equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention
- Both functions must be actually – not theoretically – present and active in a device at the time the call is made
- Only calls made using actual ATDS capabilities are subject to the TCPA’s restrictions
Calling the TCPA landscape “dysfunctional” and in need of “clarity,” the petitioners cite a “whirlwind” if litigation “against legitimate businesses attempting to lawfully communicate with their customers.”
Interpretations by the courts and the FCC have strayed far from the statute’s text, Congressional intent, and common sense. The TCPA has turned into a breeding ground for frivolous lawsuits brought by serial plaintiffs and their lawyers who have made lucrative businesses out of targeting legitimate U.S. companies.”
