The Professional Association for Customer Engagement (PACE) won a decisive victory for sensible regulation of the teleservices industry. In a unanimous decision, the U.S. Court of Appeals for the D.C. Circuit vacated the Federal Communications Commission’s arbitrary and capricious definition of an automated telephone dialing system and creation of a one-call safe harbor for calls to reassigned numbers under the Telephone Consumer Protection Act (TCPA).
In its 2015 Omnibus Declaratory Ruling and Order, the FCC held that any system with the present capacity or potential functionality to operate as an automated telephone dialing system (ATDS) meets the definition of an ATDS. PACE strongly objected to this definition as overly broad and not grounded in the law, as evidenced by the fact that even a generic smartphone could be an ATDS under the FCC’s definition. In vacating the FCC’s definition, the Court agreed, “Those sorts of anomalous outcomes are bottomed in an unreasonable, and impermissible, interpretation of the statute’s reach. The TCPA cannot reasonably be read to render every smartphone an ATDS …”
Likewise, the Court set aside the FCC’s one-call safe harbor for calls to reassigned numbers as arbitrary and capricious. In its 2015 Order, the FCC defined the “called party” for purposes TCPA liability as the new subscriber of a reassigned number but exempted from liability callers who erroneously made one call without consent to the new subscriber. Industry participants warned that that this one-call safe harbor was insufficient because in many instances a caller would not learn from that one call whether the number had been reassigned (e.g. the call is not answered, the voicemail is not descriptive, a text message is not returned). The Court not only vacated the safe harbor, it also recognized the potential for strict liability to attach under the FCC’s definition of “called party” as the new subscriber and set the definition aside too.
The Court did let stand the FCC’s decision to allow consumers to revoke their consent to be called using any reasonable means that clearly express a desire not to receive further messages. PACE and other petitioners argued that the reasonable means test could allow for a consumer to revoke consent by telling a store clerk that they revoke consent or another means that would not fall into a caller’s normal process for recording revocation of consent. Acknowledging this concern, the Court elucidated that “[C]allers will have every incentive to avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods. If recipients are afforded such options, any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.”
Reacting to this victory, Stuart Discount, PACE CEO, stated, “PACE appreciates that the Court rightly found that the FCC went too far in its definition of an ATDS and its treatment of reassigned numbers in its 2015 Order.
“PACE looks forward to working with the FCC over the coming months to develop reasonable regulations that align with the statutory language and protect both consumers and callers.”
PACE continues to analyze the Court’s decision and its impact on callers across the country.
Founded in 1988, PACE is dedicated to the advancement of companies that engage with customers via the contact center. The association promotes its members’ ability to provide outstanding customer service and sales solutions delivered via omnichannel communication including voice, email, chat, text, and social media.