MBA Urges FCC to ‘Reasonably’ Define Autodialer Rules

As the Federal Communications Commission grapples with protecting consumers from intrusive cold calls and fax-spamming, the Mortgage Bankers Association urged the Commission to promulgate “appropriate” regulations under the Telephone Consumer Protection Act.

The Oct. 24 MBA letter urged the FCC to define “autodialer” reasonably and as intended by Congress in drafting the statute. “The TCPA should not expose legitimate businesses to unquantifiable uncertainty and the threat of costly liability for placing legitimate informational and other non-telemarketing calls to their customers,” said MBA Senior Vice President of Residential Policy & Member Engagement Pete Mills. “Unfortunately, the recent wave of litigation had led to this very situation.”

The TCPA was enacted by Congress to combat an abusive form of cold-call telemarketing and fax-blast spamming. However, a recent D.C. Circuit Court case invalidated key portions of the FCC’s 2015 Declaratory Ruling on the TCPA. In the wake of the decision, district courts have begun creating a patchwork of TCPA interpretations.

The TCPA defines an Automatic Telephone Dialing System as a device that has the capacity to “store or produce telephone numbers to be called, using a random or sequential number generator’ and to dial such numbers.” Thus, a plain reading of the statute suggests the following must be satisfied for a device to be deemed an ATDS:

–A device must be able to generate numbers in either random order or in sequential order to satisfy this definition.

–A device must be able to store or produce those numbers called using that random or sequential number generator.

–The device must be able to dial those numbers.

“The Commission should not–and indeed cannot–deviate from this straightforward language. Devices that cannot perform all three of these functions cannot meet the statutory definition of an ATDS,” MBA said. “MBA urges the Commission to adhere to the statutory text of the TCPA and propose rules that retain consumer protections while creating clear paths to compliance for businesses.”