The FCC issued a Public Notice on November 19, 2013, seeking comments on a petition for expedited declaratory ruling that had been filed by the Professional Association for Customer Engagement (“PACE”).  The PACE Petition asked for clarification on two issues related to the definition of “automatic telephone dialing system” for purposes of the Telephone Consumer Protection Act: (1) whether a dialing system must have the capacity to dial numbers without human intervention and (2) whether a dialing system’s “capacity” is limited to what the system is capable of doing, without further modification, at the time the call is placed.  Comments on the PACE Petition are due by December 19, 2013.

The FCC’s decision to seek comments on the PACE Petition is significant because it opens the door to potential clarification from the FCC on two issues that have been the subject of uncertainty and concern, especially in light of two federal court decisions that were previously discussed in this blog.  In requesting clarification that an “automatic dialing telephone system” must have the capacity to dial calls without human intervention, the PACE Petition specifically referred to the court’s decision in Nelson v. Santander Consumer USA, Inc., 931 F. Supp. 2d 919 (W.D. Wis. 2013), which has been interpreted by some as opening the door to treating as an “automatic dialing telephone system” a dialing system that requires human intervention (e.g., clicking on a screen to dial a call).  If the PACE Petition is granted as to this issue, the confusion generated by the Nelson decision could be settled.

Similarly, in requesting clarification that the “capacity” of an ATDS is limited to what the system is capable of doing, without modification, at the time the call is placed, the PACE Petition effectively seeks affirmation of the holding by the court in Hunt v. 21^st Mortgage Corp., 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013).  As we had discussed earlier, in Hunt the court took the narrow view that the “capacity” of a dialing system for purposes of the TCPA is limited to the present capacity of the system at the time the call was placed. (Our prior summary of the Hunt decision is available here).  A ruling by the FCC endorsing the narrow view taken by the Hunt court would eliminate a growing source of confusion and concern in this field and would put companies in a better position to determine if their dialing systems are “automatic telephone dialing systems” for purposes of the TCPA.

The request for comments on the PACE Petition joins a growing list of pending request for comments before the FCC on petitions seeking clarification on or forbearance from the FCC’s rules implementing the requirements of the TCPA.  (Our previous post on this subject is available here).  Some of these petitions have been pending before the FCC for more than a year.  The fact that the FCC now has a new Chairman who already has made his own appointments to key FCC posts gives rise to optimism that the FCC may act on these pending petitions in the near future.  Until then, companies unfortunately are left with uncertainty when trying to determine whether the ATDS they use are “automatic dialing telephone systems” for purposes of the TCPA.