TCPA In 2018: A year in review

Compliance with the Telephone Consumer Protection Act currently depends greatly on where you do business.

The courts deciding issues under the Telephone Consumer Protection Act in 2018 did little to provide greater clarity on how callers can effectively avoid liability for telephone calls and text messages to consumers. Until the Federal Communications Commission issues another TCPA order in light some of these court decisions, and/or the U.S. Supreme Court addresses the conflicting decisions of the various appeals courts, compliance with TCPA will depend on where you do business.

What is an “Automated Telephone Dialing System”?

Perhaps the area of greatest confusion and risk of liability lies with the issue of how an automated telephone dialing system ATDS is defined. The FCC 2015 order interpreted an ATDS to include equipment that has the potential ability to dial randomly or sequentially, including by the modification of equipment or adding software to provide these capabilities in the future.

A number of entities, including ACA International, requested review of the 2015 order. On March 16, 2018, the D.C. Circuit Court of Appeals in ACA International v. FCC rejected the FCC’s 2015 interpretation of an ATDS. The court ruled it is unreasonable to conclude smartphones qualify “because they have the inherent ‘capacity’ to gain ATDS functionality by downloading an app.” The focus should be on “how much is required to enable the device to function as an autodialer.”


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