The U.S. Chamber of Commerce and a number of other groups that represent financial institutions, health care companies, insurance companies, and retail outlets sent a letter to Secretary of the Federal Communications Commission Marlene H. Dortch on February 5, asking the FCC “to clarify expeditiously” the definition of an automatic telephone dialing system under the much-maligned Telephone Consumer Protection Act. The groups asked the agency to act on its May 2018 Petition for Declaratory Ruling (“the Petition”), which was filed weeks after the D.C. Circuit’s seminal decision in ACA International. Though many believed that the FCC would undertake swift action, almost two years have passed with no guidance from regulators.
Meanwhile, the courts, lacking definitive interpretative guidance from the FCC, are at odds. The letter specifically cited the Eleventh Circuit’s decision in Glasser v. Hilton Grand Vacations, which was issued in late January. In Glasser, the Eleventh Circuit took a textualist approach to the statute and found that telephony must include a random or sequential number generator to qualify as an ATDS. The ruling puts the United States courts of appeals directly at odds with the Ninth Circuit’s holding in Marks v. Crunch San Diego, LLC. The groups hailed Glasser as a rejection of “the overly expansive ATDS definition adopted by the Ninth Circuit.”
Referencing the Petition, the groups said that the filing “makes two common-sense requests of the FCC: (1) make clear that to be an ATDS, equipment must use a random or sequential number generator and store or produce numbers and dial those numbers without human intervention, and (2) find that only calls made using actual ATDS capabilities are subject to the TCPA’s restrictions.” The letter further stated that the “proposals are faithful to the plain language of the TCPA, closely follow the D.C. Circuit’s decision in ACA International, and have strong support in the record.”
The debate among the circuits could be rendered moot by the United States Supreme Court. The justices granted certiorari in Barr v. American Association of Political Consultants in mid-January, addressing the government-backed debt exemption from the TCPA’s prohibitions on automated calls. In theory, the Supreme Court could hold the TCPA unconstitutional. Facebook has petitioned for certiorari in Duguid v. Facebook, asking the Court to weigh in on both the constitutionality of the TCPA and the Ninth Circuit’s definition of an ATDS. The justices reviewed Facebook’s petition during their January 24 private conference, but have not yet issued an order or relisted the petition.