As I reported a few weeks back, a block of 14 Democratic Senators recently wrote to FCC Chairman Pai and urged him to maintain the Commission’s broad reading of, inter alia, the TCPA’s ATDS definition.

Not to be outdone, several GOP Senators–lead by John Thune, Chair of the Senate Committee on Commerce, Science and Transportation– have now submitted their own letter to Chairman Pai urging, well, exactly the opposite.

Noting that the pervasive lack of clarity in TCPAland has made it “more difficult for consumers to receive the communications they want and need,” the letter urges the FCC to take “quick action” to clarify the statute. (Please keep the snickering to a minimum.) In terms of specifics, the letter urges the FCC to maintain the requirement of random or sequential number generation as the hallmark of an ATDS. It also urges the FCC adopt a “present” capacity approach. These suggestions stand in marked contrast to the Democratic letter, that sought to include dialers that call from a list of numbers.

Notably, the letter uses the phrase “good faith” in the last paragraph– suggesting that the Commission might want to consider some sort of safeharbor for errant calls. The idea is not very fleshed out, however. The letter also makes repeated reference to the need to fight “unwanted” robocalls, which suggests that the battle lines remain blurred as a definition of “robocall” continues to elude.

It remains to be seen what the FCC does now that the comment period on its Public Notice is over a month behind us. Speculation suggests that a ruling may be out prior to the mid-terms. For now, the Courts continue to struggle with the issue of whether or not predictive dialers are still covered by the TCPA, but seem to be requiring the “present” capacity to generate numbers randomly or sequentially outside of that context. More to come.

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