Washington D.C. partner Laura Phillips co-authored a Q&A published in Practical Law titled “Expert Q&A on TCPA Guidance After ACA International.”
The article offered insights on how organizations can navigate ambiguities in the Telephone Consumer Protection Act (TCPA) following the U.S. Court of Appeals for the D.C. Circuit decision in ACA International v. Federal Communications Commission. The ruling partially vacated how the FCC’s 2015 Declaratory Ruling and Order applies to various technologies, but did not provide further guidance on the parts that were left intact. Thus, the FCC is reviewing its rules in light of the court’s decision.
Among the questions Laura addressed was how telemarketers might determine whether their equipment fits the definition of an automatic telephone dialing system (ATDS) and what technological changes could effect this classification. Laura said that between the ACA International decision and public comments made by individual FCC commissioners “it seems fair to assume that the FCC will not adopt an approach that attempts to regulate all technologically advanced equipment under the guise of the TCPA.” The FCC will likely focus on devices that have the actual capability of generating and dialing random or sequential numbers, she said, rather than devices with “the mere theoretical capacity to do so.”
“Additionally, should the FCC determine that a potential TCPA violation arises only if the call or text message is made with ATDS functionality, callers that do not use that functionality in their customer-outreach programs can rely on this further layer of protection, which is particularly critical in the marketing context,” she said.
Read “Expert Q&A on TCPA Guidance After ACA International.” (subscription required)
