FCC Petitions Request Clarification of “Automatic Telephone Dialing System”

Earlier this year, FCC Commissioner Michael O’Rielly posted an article on the FCC’s website entitled “TCPA: It’s Time to Provide Clarity.”  He called on the FCC to “take a hard look at its own precedent” because “some of [the] prior interpretations of the TCPA, while well-meaning, may have contributed to the complexity [of the statute] by enlarging the scope of potential violations.” 

O’Rielly went on to recommend that the FCC provide further guidance to the courts on TCPA actions.  There are currently seven pending petitions in front of the FCC relating to the definition of “automatic telephone dialing system” (“ATDS”).  The FCC will likely rule on these petitions in the near future.

1. Milton H. Fried, Jr. and Richard Evans
Filed May 27, 2014

Petitioners requested the FCC clarify whether certain equipment, individually or combined, that is used to transmit text messages is an ATDS within the meaning of the TCPA.  Petitioners are plaintiffs in an action pending against defendants who allegedly used such equipment to send advertising text messages to plaintiffs.  A judge in the Southern District of Texas referred the ATDS issue to the primary jurisdiction of the FCC.

2. TextMe, Inc.
Filed Mar. 18, 2014

TextMe petitioned the FCC to clarify the meaning of the term “capacity” as used in the TCPA’s definition of ATDS, to include only equipment that, at the time of use, could perform the functions described in the TCPA without human intervention and without first being modified.

TextMe also asked for clarification that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA.  Finally, TextMe requested the FCC clarify that third party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers.

3. ACA International
Filed Jan. 31, 2014

ACA International requested the FCC address four topics including 1) not all predictive dialers are categorically automatic telephone dialing systems, 2) confirm that “capacity” under the TCPA means present ability, 3) clarify that prior express consent attaches to the person incurring a debt, and not the specific telephone number provided by the debtor at the time a debt was incurred, and 4) establish a safe harbor for autodialed “wrong number” non-telemarketing calls to wireless numbers.

As of the comment deadline, more than 30 organizations had submitted comments supporting some or all of ACA International’s petition’s objections.

4. Glide Talk, Ltd.
Filed Oct. 28, 2013

Glide Talk petitioned the FCC to confirm that: 1) the “capacity” of an ATDS is assessed at the time that a call is made, 2) companies that provide services, software and mobile apps, whose features permit users to initiate text message invitations, do not “make” calls under the TCPA, and 3) if the FCC determines that a company has “made” a call under the TCPA, third party consent is sufficient for non-telemarketing, user-initiated invitational text messages to wireless numbers.

Glide Talk provides software that allows users to send video text messages and invite friends to join via text message.  Glide Talk is currently a defendant in a TCPA class action that alleges the company sent unauthorized text messages through its service.  Glide Talk contends its service does not violate the TCPA and the FCC should issue such a finding so that similar creators are not forced to defend themselves in TCPA actions.

5. Professional Association for Customer Engagement
Filed Oct. 18, 2013

PACE requested that the FCC modify the term ATDS by adding the phrase “without human intervention” to the end of the definition.  Further, the non-profit trade organization petitioned to clarify that a system’s “capacity” is limited to what the system is capable of doing at the time the call is placed, without further modification.  The organization believes that clarification of the rule will alleviate the explosion in TCPA litigation, but continue to protect the privacy rights of consumers.

6. YouMail, Inc.
Filed Apr. 19, 2013

YouMail, a software-based service that allows smartphone users to replace default voicemail options with customizable telephone answering functions, including automated text message replies to calls, petitioned the FCC to clarify that its “virtual receptionist” software is not an ATDS because the software does not have the current capacity to store, produce, or dial random or sequential telephone numbers, but only responds once to a caller leaving a voicemail message, and only when instructed to do so by a user’s settings and when adequate caller ID information is available.

Second, YouMail requested the FCC clarify that YouMail does not initiate calls because it does not cause the call to occur as defined by the TCPA.  Third, YouMail asks the FCC to confirm that callers provide prior consent to receive a responsive text when leaving voicemail messages for a YouMail subscriber. YouMail was involved in a TCPA lawsuit at the time of the petition.

7. Revolution Messaging, LLC
Filed Jan. 19, 2012

Revolution Messaging petitioned the FCC to clarify that TCPA restrictions apply to users of Internet-to-phone text messaging technology and similar technologies involving the storage and use of ATDS numbers.  Revolution Messaging stated that by sending an email to a special email address, an Internet user can cause a text message to be delivered to a cell phone. The petition asked the FCC to address whether this practice is subject to the TCPA’s rules requiring either an emergency or prior express consent before such a message can be sent.