On October 3, 2018, the FCC issued a Public Notice to seek comment on what constitutes an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA)[1] in the wake of the Ninth Circuit’s Marks v. Crunch San Diego, LLC, 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) decision last month.  Under the TCPA, an ATDS is defined as equipment that has the capacity to “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”[2]  The FCC noted that the Marks court expanded this definition of an ATDS to include devices that have the potential capacity to store numbers and to dial stored numbers automatically.

The Marks court’s expanded definition of an ATDS would potentially subject devices such as smartphones to penalties under the TCPA.  That decision also conflicts with rulings in other Circuits that narrowed the statute, namely ACA Int’l v. Fed. Communications Comm’n, 885 F.3d 687 (D.C. Cir. 2018) issued by the D.C. Circuit earlier this year.  The FCC discussed the conflict that Marks produced with ACA Int’l, whose court held that the TCPA unambiguously foreclosed an interpretation of an ATDS that would subject ordinary calls from devices such as smartphones to the statute’s authority.  This conflict now raises questions for the FCC as to how to apply and interpret the TCPA regarding what can be considered an ATDS.

As such, the FCC is seeking comment on how to address the holdings of ACA Int’l and Marks in applying the TCPA going forward.  The FCC would like to address questions such as “does the interpretation of the Marks court mean that any device with the capacity to dial stored numbers automatically is an [ATDS]?” and to seek comment on any other issues from Marks that it should consider in interpreting what constitutes an ATDS.  Interested parties can file comments and reply comments on or before October 17, 2018 and October 24, 2018 respectively, using the FCC’s Electronic Comment Filing System.

A copy of the public notice can be viewed by clicking here.

[1] 47 U.S.C.A. § 227

[2] 47 U.S.C.A. § 227(a)(1).

[View source.]