In a letter to Federal Communications Commission (FCC) Chair Ajit Pai, a group of 14 senators urged the agency to adopt “important consumer safeguards” in the wake of the ACA International v. FCC decision.
The March decision set aside the FCC’s overly expansive definition of an automatic telephone dialing system (ATDS) as well as the agency’s one-call safe harbor for reassigned numbers.
Given the major shake-up resulting from the decision, the FCC released a public notice requesting comment on how the agency should interpret the Telephone Consumer Protection Act (TCPA) moving forward.
A group of lawmakers consisting mostly of Democrats—specifically, Senators Ed Markey (D-Mass.), Robert Menendez (D-N.J.), Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Ron Wyden (D-Ore.), Catherine Cortez Masto (D-Nev.), Tim Smith (R-S.C.), Sheldon Whitehouse (D-R.I.), Tammy Baldwin (D-Wis.), Richard Blumenthal (D-Conn.), Bernard Sanders (I-Vt.), Margaret Wood Hassan (D-N.H.), Jack Reed (D-R.I.) and Amy Klobuchar (D-Minn.)—answered the call.
Expressing concern “that the absence of core protections would result in even more invasive calls and texts,” the legislators offered the FCC three suggestions:
First, the agency should establish a comprehensive definition of an ATDS, according to the senators, using its authority to carve out ordinary devices like smartphones that are not being ordinarily used to autodial consumers en masse. “Doing so ensures calling parties using automated dialing equipment to make calls or texts en masse must first obtain affirmative consent from consumers,” according to the letter. “Further, the FCC should uphold Congress’ intent to cover all callers using auto dialers, not exclusively those using artificial-voice or prerecorded messages.”
Second, addressing the problem of reassigned numbers, the lawmakers encouraged the FCC “to maintain aggressive protections restricting unwanted calls and texts to reassigned numbers. To do so, the FCC should reaffirm that the term ‘called party’ means the actual party that is called, not the intended recipient of the call. The FCC should also ensure that callers continue to face liabilities for these illegal calls and texts in any future TCPA order or rulemaking.”
Third, the senators advised the agency to be generous with regard to the revocation of consent. “[C]onsumers should always have a reasonable means to revoke consent at any time should they no longer wish to receive robocalls and robotexts,” the legislators wrote. “We respectfully request that you reiterate that consumers always have the right to revoke consent, regardless of any contractual clauses that may be included in user agreements. We also request that you require callers to notify consumers of their right to revoke consent.”
The letter closed with a reminder of the “FCC’s obligation to use its existing authority to reestablish robust, enforceable protections to enhance the precious zone of privacy created by the law. We urge you to fulfill your statutory obligations to establish these important protections.”
To read the letter, click here.
Why it matters: As the implications of the ACA International decision continue to play out, the senators adopted a consumer-friendly position in their letter to the FCC, requesting a broad definition of an ATDS, a tough stance on calls to reassigned numbers, and an unlimited power to revoke consent. Meanwhile, courts still wrestle with defining what precisely is an ATDS in the post-ACA world, with fairly mixed results.