The Telephone Consumer Protection Act (TCPA) generally prohibits placing calls or sending text messages using an “automatic telephone dialing system” (ATDS) without the prior express consent of the called party. Given the high stakes in TCPA class actions ($500 to $1,500 per violation), litigants across the country have butted heads over the proper interpretation of key statutory provisions. This includes: whether the definition of an ATDS encompasses new calling technologies ubiquitous today, but that were not in existence when the TCPA was enacted in 1991; the extent to which intermediaries who play only a limited role in placing a call are liable; whether a business violates the act by calling a number for which it had consent but that was subsequently reassigned; how customers may revoke consent; and whether non-telemarketing calls are exempt.

On July 10, the Federal Communications Commission issued a long-awaited declaratory ruling and order addressing 21 requests for clarification or other action regarding the TCPA and its corresponding regulations, titled In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135 (July 10, 2015). A divided FCC voted 3-2 to amend its rules in an effort to “preserve consumers' rights to stop unwanted robocalls.”

Key elements of the declaratory ruling and its ramifications are discussed below.

'AUTODIALER' DEFINITION EXPANDED

An ATDS is defined as “equipment which has the capacity … to store or produce telephone numbers to be called, using a random or sequential number generator; and … to dial such numbers.” Based on the plain reading of this definition equipment should not qualify as an autodialer if it does not have the “capacity” or ability to either generate or store random/sequential numbers, dial sequentially or randomly at the time the call is made, or place a call without human intervention.