A. Current State of the Automated Telephone Dialing System and a Congressional Resolution, the Stopping Bad Robocalls Act

By this time next year, the TCPA landscape may look very different. A uniform Automated Telephone Dialing System (“ATDS”) definition, binding FCC guidance, a Congressional amendment to the TCPA; these are all possibilities, and at least one is likely to stick. With all these permutations in play, litigants should consider seeking a stay pending definitive guidance.

Most recently, on February 4, 2019, the Stopping Bad Robocalls Act (“SBRA” HR 946) was reintroduced in the House of Representatives. Among its proposals, the SBRA would amend the TCPA by replacing the phrase to “use an Automatic Telephone Dialing System” with “to make robocalls.” This Congressional proposal comes amid forthcoming FCC guidance on the ATDS definition and the Supreme Court’s decision in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., which may determine whether the FCC’s forthcoming legal interpretations of the TCPA are binding on District Courts. 138 S. Ct. 478 (2019). Moreover, the defendant in Marks v. Crunch San Diego filed its writ of certiorari on January 29, 2019 seeking review of the Ninth Circuit’s interpretation of the ATDS definition. Of these options, however, an Act of Congress would be determinative.

B. Litigation Implications if the SBRA Is Implemented

If enacted, the SBRA will supersede any ATDS interpretation offered by the FCC or Supreme Court. In its proposed form, the SBRA will strike the phrase “use an Automatic Telephone Dialing System” inserting “make robocalls,” defined as:

A) using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for a call made using only equipment that the caller demonstrates requires substantial additional human intervention to dial or place a call after a human initiates the series of calls; or B) using an artificial or prerecorded voice. See SBRA of 2019, H.R. 946.

At first glance, the “robocall” definition bears a striking resemblance to the current “ATDS” definition including references to “stored telephone numbers,” and use of a “random or sequential number generator.” Id. On closer examination, however, the SBRA definition aligns with Marks in regards to number generation, but challenges Marks’s dismissal of the human intervention test. Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018). This codification of the human intervention test can be a powerful tool for litigants going forward.

The SBRA’s amendment would create a cause of action under the TCPA whether or not a dialer has the capacity to produce numbers using a random or sequential number generator. Courts have wrestled with whether technology needs to generate telephone numbers to qualify as an ATDS.^[1] The SBRA, however, would likely clarify the point and open the door to technology that either generates numbers or dials them from a list.

However, the SBRA formalizes a defense based on substantial human intervention, a judicial rule Markspotentially negated. Marks, 904 F.3d at 1053 (reading an ATDS to include equipment with capacity to dial numbers automatically “even if the system must be turned on or triggered by a person.”); Herrick v. GoDaddy.com LLC, 312 F. Supp. 3d 792 (finding a provider did not use an ATDS where it had to “log into system, create a message, schedule a time to send it, and enter a code to authorize its ultimate transmission.”). Without more, however, courts will have to continue deciding what “substantial additional” human intervention actually means.

C. Additional Proposal within the SBRA Seeking to Amend the TCPA

In addition to the ATDS amendment, the SBRA also proposes to curb the rise of robocalls by:

• Amending the TCPA to ensure that the FCC has the authority and the tools to take strong, quick action when it tracks down robocallers;

• Allowing consumers to revoke consent they had previously given to receive calls at any time and in any reasonable manner;

• Codifying a reassigned number database to put robocallers on notice when a telephone number they may have previously been authorized to call has been given to a new customer who has not authorized their call;

• Limiting the number of robocalls exempted from the TCPA under the FCC’s rules;

• Requiring calls to have verified caller identification information associated with a call before the call can be put through; and

• Extending the statute of limitations from one year to four years for callers violating robocall prohibitions.

See, Pallone Reintroduces Bill to Stop Robocalls, Press Release, February 4, 2019 https://energycommerce.house.gov/newsroom/press-releases/pallone-reintroduces-bill-to-stop-robocalls

D. Litigation Recommendation

Because it appears ever more likely that the ATDS definition is set to change, or be removed altogether, litigants should consider seeking a stay pending 1) FCC guidance on the ATDS definition; 2) the Supreme Court’s decision in PDR Network, LLC v. Carlton & Harris Chiropractic Inc.; 3) the Supreme Court’s decision to grant certiorari in Marks v. Crunch San Diego; or 4) Congress’s decision to pass or reject the SBRA.

[1] See Marks, 904 F.3d at 1043 (“the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”); Cf. Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d. Cir.) (Finding Plaintiff failed to establish use of ATDS absent any evidence that the system had capacity to generate random or sequential telephone numbers and dial those numbers, as opposed to sending messages only to numbers individually and manually inputted into its system by a user.).