TCPA Alert December 2018 by Richard B. Newman, December 11, 2018 FCC Releases Draft Order to Combat “Robocalls” The Federal Communications Commission recently released two draft orders intended to address unlawful robocalls. The first establishes a nationwide reassigned number database in order to address caller liability under the Telephone Consumer Protection Act when the new user has not provided prior express written consent. The FCC believes that a comprehensive database of numbers that have been permanently disconnected and are available for reassignment will enable telemarketers to inquire as to whether the telephone number remains associated with the intended party. The order obligates providers with direct or indirect access to telephone numbers to provide monthly reports. The draft order’s definition of “permanent disconnection” does not include telephone numbers that have been ported to another carrier. Providers would also be required to hold disconnected numbers for 45 days before reassignment is permitted. The draft reassigned number database order does not address the issue of a safe harbor for callers using the database or the definition of a “called party.” It is anticipated that the FCC will do so shortly. The second draft order classifies SMS text messages as “information services” in order to assist wireless providers ability to block them. According to the FCC, the classification “will empower wireless providers to continue their efforts to protect consumers from unwanted text messages. Conversely, according to the FCC, Title II regulation “would harm those efforts and open the floodgates to unwanted text messages—drowning consumers in spam at precisely the moment when their tolerance for such messages is at an all-time low.” Court Finds No Ambiguity in ATDS Definition The TCPA autodialer (ATDS) definition following the Ninth Circuit Marks decision has been a subject of great interest to marketers, plaintiffs’ attorneys and courts. A District Court in the Northern District of Illinois recently reconsidered a ruling it made in 2014, expressly rejecting the Ninth Circuit’s expansive interpretation of an ATDS. Johnson v. Yahoo!, Inc., No. 14-cv-02028 (N.D. Ill. Nov. 29, 2018). This the second court outside of the Ninth Circuit to do so. In 2014, the lower court followed prior FCC rulings that interpreted ATDS “to include systems that dialed numbers pulled from a stored list without human intervention.” Upon reconsideration, the court found it was no longer bound by the FCC’s prior predictive dialer rulings because of the recent decision by the D.C. Circuit in ACA Int’l and its option to revisit its definition when confronted with arguments about the statutory text. The court recognized that the Ninth Circuit believes “the statutory language is ambiguous enough to include a device that dials numbers from a stored list (without random or sequential number generation.” However, it read the statute differently and concluded that the definition of ATDS is “not ambiguous.” It reasoned that the phrase “using a random or sequential number generator” applies to the numbers to be called and an ATDS must either store or produce those numbers, and dial them. (and then dial them). Organized lists of telephone numbers that have been developed without random or sequential number generation capacity fall outside the TCPA’s scope, the court stated. If you are interested in learning more about TCPA litigation trends or if you have been served with process, please email the author at firstname.lastname@example.org. Richard B. Newman is an FTC attorney at Hinch Newman. Attorney advertising. Informational purposes only. Not legal advice. Previous results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777. Filed under: Blue Book, Revenue Tagged under: affiliate marketing, FTC Compliance, Robocalls, TCPA About the Author Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP. He is a nationally recognized FTC defense lawyer and advertising compliance attorney. He regularly provides advertising counsel and represents clients in high-profile investigations (CIDs) and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard’s practice also concentrates upon transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements.