FCC Indicates It May Clarify Definition Of Automatic Telephone Dialing System Under TCPA

The FCC issued a Public Notice on November 19, 2013, seeking comments on a petition for expedited declaratory ruling that had been filed by the Professional Association for Customer Engagement ("PACE"). The PACE Petition asked for clarification on two issues related to the definition of "automatic telephone dialing system" for purposes of the Telephone Consumer Protection Act: (1) whether a dialing system must have the capacity to dial numbers without human intervention and (2) whether a dialing system's "capacity" is limited to what the system is capable of doing, without further modification, at the time the call is placed. Comments on the PACE Petition are due by December 19, 2013.

The FCC's decision to seek comments on the PACE Petition is significant because it opens the door to potential clarification from the FCC on two issues that have been the subject of uncertainty and concern, especially in light of two federal court decisions that were previously discussed in this blog. In requesting clarification that an "automatic dialing telephone system" must have the capacity to dial calls without human intervention, the PACE Petition specifically referred to the court's decision in Nelson v. Santander Consumer USA, Inc., 931 F. Supp. 2d 919 (W.D. Wis. 2013), which has been interpreted by some as opening the door to treating as an "automatic dialing telephone system" a dialing system that requires human intervention (e.g., clicking on a screen to dial a call). If the PACE Petition is granted as to this issue, the confusion generated by the Nelson decision could be settled.

Similarly, in requesting clarification that the "capacity" of an ATDS is limited to what the system is capable of doing, without modification, at the time the call is placed, the PACE Petition effectively seeks affirmation of the holding by the...