Led by the US Chamber of Commerce (Chamber), a coalition of seventeen groups representing financial institutions, healthcare managers, insurance companies and retail and restaurant businesses (Coalition) has pressed the Federal Communications Commission (FCC) “to clarify expeditiously the Telephone Consumer Protection Act’s …definition of automatic telephone dialing system….” The vehicle for such action would be a Petition filed “more than 21 months ago,” in May of 2018, by a number of the signatories to the ex parte presentation submitted to the FCC on February 5.

With FCC and, now, Congressional initiatives to combat illegal calls in place and in the process of being implemented, the Coalition urges the FCC to “take action to ensure that consumers receive the important, and often time-sensitive, informational calls that legitimate businesses place….” At the top of the list is that it is “imperative that the Commission take action to ensure that the definition of [automatic telephone dialing system] ATDS conforms to the text of the statute and provides certainty for actors in the calling ecosystem.”

The May 2018 Petition made “two common sense requests” that the Chamber urges action on for five specified reasons.

The requests asked the FCC to “‘(1) make clear that to be an ATDS, equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention, and (2) find that only calls made using actual ATDS capabilities are subject to the TCPA’s restrictions.’”

The five specified reasons put forth by the ex parte filers are as follows:

• “Uncertainty about the scope of the ATDS definition has led to divergent TCPA interpretations among the Federal courts, greatly complicating legal callers’ compliance efforts.”

• “Consumers are harmed when they do not receive time-critical, non-telemarketing communications from healthcare providers …banks [and other entities] because the business is discouraged from placing the call due to litigation risk.”

• “Clarification of the definition of ATDS is needed to bring the definition into conformity with the text of the statute and congressional intent.”

• “The ongoing uncertainty surrounding the definition of ATDS continues to fan the flames of abusive TCPA litigation.”

• “The Commission has had ample time to consider the definition of ATDS.”

The Coalition presentation was filed in FCC CG Docket Nos. 02-278 and 18-152. These proceedings have been the repository for many comments on the subject since the Commission sought input on the ATDS question in the aftermath of the District of Columbia Circuit’s ACA International decision. The dockets remain open and there is plenty of room for more comments that would urge FCC action on this issue central to the application of the TCPA.