On May 3, the U.S. Chamber of Commerce and 17 trade groups filed a petition with the Federal Communications Commission for a declaratory ruling seeking a narrow definition of an automatic telephone dialing system, or “ATDS” – one of the key components of liability under the Telephone Consumer Protection Act.

The decision follows the D.C. Circuit’s landmark decision in ACA International v. FCC, which was largely seen as a major win for defendants in TCPA lawsuits, as the D.C. Circuit struck down key portions of the FCC’s previous expansive interpretations of the TCPA, including its definition of an ATDS.  In an opinion by Judge Sri Srinivasan, the court found the FCC’s interpretation, as announced in the 2015 Order, “utterly unreasonable” and lacking clarity.  The ruling also struck down long-standing TCPA rulings going back to 2003 on the issue of predictive dialers.  While the FCC has taken the position for 15 years that a predictive dialer is an ATDS, the D.C. Circuit found that the 2015 Order and its predecessors do not give a clear answer as to whether a device qualifies as an ATDS only if it can generate random or sequential numbers for dialing.

Joining the Chamber of Commerce petition are many members of the financial services industry, including ACA International, the American Bankers Association, the Mortgage Bankers Association, the Consumer Bankers Association, and the American Financial Services Association.  In the petition, the groups urge the FCC to confirm that equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention to qualify as an ATDS and to find that only calls made using actual ATDS capabilities are subject to the TCPA.  Calling the ACA decision “an opportunity to restore rationality to . . . the TCPA,” the groups ask the Commission to issue a declaratory ruling as soon as possible to clarify the ATDS definition.

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 500 companies regarding their compliance strategy.  We will continue to monitor legislative developments and regulatory implementation of the TCPA in order to identify and advise on potential risks.