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Aware that a recent court ruling broadly interpreting the term “automatic telephone dialing system” (ATDS) in the Telephone Consumer Protection Act (TCPA or the Act) may conflict with previous rulings and cause confusion and substantial litigation risk for companies, the Consumer and Governmental Affairs Bureau (Bureau) of the Federal Communications Commission (FCC or Commission) seeks additional public comment on or before October 17 on what constitutes an ATDS.

Background: The Confusion for Businesses Created by Marks

Last month, we provided a client bulletin describing a September 20, 2018 decision of the 9th Circuit Court of Appeals (Marks v. Crunch San Diego LLC) that expansively interpreted the term ATDS to include both equipment that has the capacity to call randomly or sequentially generated numbers and equipment that merely has the capacity to automatically dial stored numbers by the company.

The Marks decision is seemingly at odds with the decisions of several other courts considering the definition of an ATDS, including:

  • ACA Int’l v. FCC 885 F.3d 687 (D.C. Cir. 2018). (concluding that the TCPA could not be interpreted in a way that “would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage.”)
  • Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018), King v. Time Warner Cable, Inc., 894 F.3d 473 (2d Cir. 2018) (concluding that only a device that generates random or sequential numbers qualifies as an ATDS.)

The FCC Seeks Comments to Help Resolve This Confusion

Accordingly, on October 3, the Bureau issued a Public Notice seeking additional comment on what constitutes an ATDS. The Bureau noted the potential conflict between the decisions of the 9th Circuit and the D.C. Circuit with respect to “devices with the capacity to store numbers and to dial numbers automatically.”

Specifically, the Bureau seeks comment on the following issues, all of which are designed to help the Commission address and square the Marks and ACA Int’l decisions:

  • How to interpret and apply the definition of ATDS following Marks;
  • How to interpret the phrase “using a random or sequential number generator” following Marks;
  • How to consider the Marks decision in light of the analysis in ACA Int’l;
  • Whether the Marks decision means that any device with the capacity to dial stored numbers is an ATDS;
  • Which devices have the capacity to store numbers, and whether smartphones have that capacity; and
  • Which devices that can store numbers also have the capacity to dial those numbers, and whether smartphones have that capacity.

Comments must be filed with the Bureau no later than October 17, and reply comments no later than October 24.