Supplemental Public Notice on TCPA Scope Post Marks

Well the Marks case just got even bigger somehow.

After the extreme position taken by the Ninth Circuit Court of Appeal two weeks ago the Federal Communications Commission (“FCC”) has decided to re-open the comment period to allow the public to weigh in on the scope of the Telephone Consumer Protection Act (“TCPA”), including the meaning of the phrase automated telephone dialing system. (“ATDS”).

As the Baron deftly explained last week, Marks reads the TCPA’s definition of ATDS so as to include any dialer that has the ability to store numbers and dial them from a list without human intervention. Although Marks’ lead counsel argues that Marks merely tracks previous FCC enactments, Marks is actually a clear departure from existing legal jurisprudence and a real oddball of a ruling in a number of respects.

In light of Marks, however, the FCC is now seeking further comment on “what constitutes an ‘automatic telephone dialing system.'”  The FCC’s Public Notice (linked above) notes that Marks found the definition to be ambiguous and went on to “interpret[] the statutory language expansively so that an “automatic telephone dialing system” is “not limited to devices with the capacity to call numbers produced by a random or sequential number generator,’ but also includes devices with the capacity to store numbers and to dial stored numbers automatically.”

But in a telling tip of its hand, the FCC immediately points out the tension between Marks and ACA Int’l on the critical issue of the statute’s reach– “The ACA court, however, held that the TCPA unambiguously foreclosed any interpretation that ‘would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage.'” Public Notice at p. 2.

With the issue thus presented, the Commission seeks answers to the following questions:

• To the extent the statutory definition is ambiguous, how should the Commission exercise its discretion to interpret such ambiguities here?

• Does the interpretation of the Marks court mean that any device with the capacity to dial stored numbers automatically is an automatic telephone dialing system?

• What devices have the capacity to store numbers?

• Do smartphones have such capacity?

• What devices that can store numbers also have the capacity to automatically dial such numbers?

• Do smartphones have such capacity?

• In short, how should the Commission address these two court holdings?

• We also seek comment on any other issues addressed in the Marks decision that the Commission should consider in interpreting the definition of an “automatic telephone dialing system.”

Holy smokes folks. This is going to be interesting.

The Comment deadline is two weeks away– October 17, 2018–with a tight reply comment deadline of October 24, 2018. So act fast!