On April 18, 2018, a group of fifteen Democratic senators addressed a letter to FCC Chairman Pai related to the D.C. Circuit’s recent decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The letter notes that the ACA decision “struck down portions of a 2015 Federal Communications Commission (FCC) Omnibus Declaratory Ruling and Order limiting the definition of automatic telephone dialing systems (auto dialers), which are technologies that can be used to rapidly call and text large groups of consumers,” and expresses concern that “[w]hile the Court maintained the right to revoke consent, the Court’s ruling could be interpreted to suggest that callers could limit consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements,” which would “upend the meaning and the goals of the TCPA.” The senators ask Chairman Pai and the FCC to take the following actions:

Comprehensive Auto Dialer System Definition – When Congress passed the TCPA in 1991, one goal was clear: whether at home or on their mobile phones, consumers should not be subject to intrusive and unsolicited robocalls and robotexts. While technology has changed, that key goal has not. We urge you to establish a comprehensive definition of the term auto dialer, ensuring calling parties using automated dialing equipment to make calls or texts en masse must first obtain affirmative consent from consumers.

Reassigned Number Protections – Periodically, consumers receive unwanted robocalls and robotexts because the previous holder of the phone number, not the current holder, provided consent. Calls and texts to reassigned numbers are both a nuisance and a clear violation of the TCPA. We encourage you to maintain aggressive protections restricting unwanted calls and texts to reassigned numbers, and ensure that callers face liabilities for these illegal calls and texts in any future TCPA order or rulemaking.

Revocation of Consent – Consent is the cornerstone of the TCPA, for it affirms that consumers have the right to avoid and stop receiving unwanted calls and texts. This fundamental right is not suspended upon initially providing consent. Rather, consumers should always have a reasonable means to revoke consent at any time should they no longer wish to receive robocalls and robotexts. 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.

The letter closes by requesting a response from Chairman Pai by May 9, 2018.

Given the political affiliation of the majority at the Commission (Chairman Pai, Commissioner O’Rielly, and Commissioner Carr are Republicans), the scathing dissents that Chairman Pai and Commissioner O’Rielly penned in response to the FCC’s July 10, 2015 Ruling (dissents which the D.C. Circuit cited numerous times in its ACA decision), and the public statements from Chairman Pai and Commissioner O’Rielly hailing the D.C. Circuit’s two recent decisions rejecting prior FCC action with regard to the TCPA (ACA and Bais Yaakov), this letter is unlikely to generate any real action.

First, the leadership at the FCC is unlikely to agree that the “definition of automatic telephone dialing systems (auto dialers)” means “technologies that can be used to rapidly call and text large groups of consumers.” As the D.C. Circuit was careful to point out in the ACA decision, the statutory definition of an ATDS makes no reference to the speed or volume of calls, but rather only to whether the equipment has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” 47 U.S.C. § 227(a)(1). Indeed, current FCC leadership is likely to point to what the FCC recognized when it first implemented the TCPA in 1992: “The prohibitions of § 227(b)(1) clearly do not apply to functions like ‘speed dialing’. . . because the numbers called are not generated in a random or sequential fashion.”

Second, the leadership at the FCC is unlikely to agree that “limit[ing] consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements . . . would upend the meaning and the goals of the TCPA.” Rather, current FCC leadership is likely to invoke the Second Circuit’s explanation from last year in Reyes v. Lincoln Automotive Financial Services, that “the TCPA does not permit a party who agrees to be contacted as part of a bargained‐for exchange to unilaterally revoke that consent,” and “[a]bsent express statutory language to the contrary, we cannot conclude that Congress intended to alter the common law of contracts [to permit such unilateral revocation of a contract].” 861 F.3d 51, 56–58 (2d Cir. 2017). Indeed, current FCC leadership is likely to rely on the Second Circuit’s apparent anticipation of the Senators’ very concern, pointing to the statements in Reyes that while the court was “sensitive to the argument that businesses may undermine the effectiveness of the TCPA by inserting ‘consent’ clauses . . . into standard sales contracts, thereby making revocation impossible in many instances,” this concern implicates “public policy considerations rather than legal ones,” meaning it is “for the Congress to resolve—not the courts” (id. at 58–59), and by implication, also not the FCC.

Third, leadership at the FCC is unlikely to agree that “one goal” of the TCPA when it was enacted in 1991 was to prohibit “robotexts” to mobile phones, and that “[w]hile technology has changed, that key goal has not.” As Commissioner O’Rielly pointed out in his dissent to the July 10, 2015 Order: “The TCPA was enacted in 1991—before the first text message was ever sent.” According to Commissioner O’Rielly in that same dissent, “[t]he Commission should have gone back to Congress for clear guidance on this issue rather than shoehorn a broken regime on a completely different technology.”