[Federal Register Volume 83, Number 109 (Wednesday, June 6, 2018)]
[Notices]
[Pages 26284-26286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12084]


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FEDERAL COMMUNICATIONS COMMISSION

[CG Docket Nos. 18-152, 02-278; DA 18-493]


Consumer and Governmental Affairs Bureau Seeks Comment on 
Interpretation of the Telephone Consumer Protection Act in Light of the 
D.C. Circuit's ACA International Decision

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: In this document, the Commission, via the Consumer and 
Governmental Affairs Bureau (Bureau), invites comment on several issues 
related to interpretation and implementation of the Telephone Consumer 
Protection Act (TCPA) following the recent decision of the U.S. Court 
of Appeals for the District of Columbia in ACA International v. FCC: 
What constitutes an ``automatic telephone dialing system,'' how to 
treat calls to reassigned wireless numbers, and how a called party may 
revoke prior express consent to receive robocalls under the TCPA. In 
addition, the Bureau seeks to refresh the record on two pending 
petitions for reconsideration of the Commission's Broadnet Declaratory 
Ruling and on a pending petition for reconsideration of the 2016 
Federal Debt Collection Rules that implemented amendments to the TCPA.

DATES: Comments are due on June 13, 2018. Reply comments are due on 
June 28, 2018.

ADDRESSES: Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Documents may be filed electronically 
using the internet by accessing ECFS: https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th Street SW, Room TW-A325, Washington, DC 20554. The filing 
hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held 
together with rubber bands or fasteners. Any envelopes and boxes must 
be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For further information, contact 
Kristi Thornton of the Consumer and Governmental Affairs Bureau at 
(202) 418-2467 or [email protected]; Christina Clearwater at 
(202) 418-1893 or [email protected]; or Karen Schroeder at 
(202) 418-0654 or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public 
Notice, document DA 18-493, released on May 14, 2018. The full text of 
document DA 18-493 will be available for public inspection and copying 
via ECFS, and during regular business hours at the FCC Reference 
Information Center, Portals II, 445 12th Street SW, Room CY-A257, 
Washington, DC 20554. A copy of document DA 18-493 and any subsequently 
filed documents in this matter may also be found by searching ECFS at: 
http://apps.fcc.gov/ecfs/ (insert CG Docket Nos. 18-152 or 02-278 into 
the Proceeding block).
    Interested parties may file comments on or before the dates 
indicated above in the Dates portion of this notice. All filings must 
reference CG Docket Nos. 18-152 and 02-278. Pursuant to Sec.  1.1200 of 
the Commission's rules, 47 CFR 1.1200, this matter shall be treated as 
a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must: (1) List all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made; and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f) of the rules or for which the 
Commission has made available a method of electronic filing, written ex 
parte presentations and memoranda summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). Participants in this proceeding should familiarize 
themselves with the Commission's ex parte rules.
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer and

[[Page 26285]]

Governmental Affairs Bureau at (202) 418-0530 (voice), (844) 432-2275 
(videophone), or (202) 418-0432 (TTY). Document DA 18-493 can also be 
downloaded in Word or Portable Document Format (PDF) at: https://apps.fcc.gov/edocs_public/attachmatch/DA-18-493A1.docx.

Synopsis

    1. In the Public Notice, the Bureau seeks comment on several issues 
related to interpretation and implementation of the Telephone Consumer 
Protection Act (TCPA), following the recent decision of the U.S. Court 
of Appeals for the District of Columbia in ACA International v. FCC, 
885 F.3d 687 (D.C. Cir. 2018).
    First, the Bureau seeks comment on what constitutes an ``automatic 
telephone dialing system.'' The TCPA defines an automatic telephone 
dialing system as ``equipment which has the capacity--(A) to store or 
produce telephone numbers to be called, using a random or sequential 
number generator; and (B) to dial such numbers.'' The Commission had 
interpreted the term ``capacity'' to include a device ``even if, for 
example, it requires the addition of software to actually perform the 
functions described in the definition''--``an expansive interpretation 
of `capacity' having the apparent effect of embracing any and all 
smartphones.'' The court set aside this interpretation, finding the 
agency's ``capacious understanding of a device's `capacity' lies 
considerably beyond the agency's zone of delegated authority.''
    2. The Bureau seeks comment on how to interpret ``capacity'' in 
light of the court's guidance. For example, how much user effort should 
be required to enable the device to function as an automatic telephone 
dialing system? Does equipment have the capacity if it requires the 
simple flipping of a switch? If the addition of software can give it 
the requisite functionality? If it requires essentially a top-to-bottom 
reconstruction of the equipment? In answering that question, what kinds 
(and how broad a swath) of telephone equipment might then be deemed to 
qualify as an automatic telephone dialing system? Notably, in light of 
the court's guidance that the Commission's prior interpretation had an 
``eye-popping sweep,'' the Bureau seeks comment on how to more narrowly 
interpret the word ``capacity'' to better comport with the 
congressional findings and the intended reach of the statute.
    3. The Bureau seeks further comment on the functions a device must 
be able to perform to qualify as an automatic telephone dialing system. 
Again, the TCPA defines an ``automatic telephone dialing system'' as 
``equipment which has the capacity--(A) to store or produce telephone 
numbers to be called, using a random or sequential number generator; 
and (B) to dial such numbers.'' Regarding the term ``automatic,'' the 
Commission explained that the ``basic function[ ]'' of an automatic 
telephone dialing system is to ``dial numbers without human 
intervention'' and yet ``declined to `clarify[ ] that a dialer is not 
an [automatic telephone dialing system] unless it has the capacity to 
dial numbers without human intervention.' '' As the court put it, 
``[t]hose side-by-side propositions are difficult to square.'' The 
court further noted the Commission said another basic function was to 
``dial thousands of numbers in a short period of time,'' which left 
parties ``in a significant fog of uncertainty'' on how to apply that 
notation. How ``automatic'' must dialing be for equipment to qualify as 
an automatic telephone dialing system? Does the word ``automatic'' 
``envision non-manual dialing of telephone numbers''? Must such a 
system dial numbers without human intervention? Must it dial thousands 
of numbers in a short period of time? If so, what constitutes a short 
period of time for these purposes?
    4. Regarding the provision concerning a ``random or sequential 
number generator,'' the court noted that ``the 2015 ruling indicates in 
certain places that a device must be able to generate and dial random 
or sequential numbers to meet the TCPA's definition of an autodialer, 
[and] it also suggests a competing view: that equipment can meet the 
statutory definition even if it lacks that capacity.'' The court 
explained ``the Commission cannot, consistent with reasoned 
decisionmaking, espouse both competing interpretations in the same 
order.'' And so, like the court, the Bureau seeks comment on ``which is 
it?'' If equipment cannot itself dial random or sequential numbers, can 
that equipment be an automatic telephone dialing system?
    5. The court also noted that the statute prohibits ``mak[ing] any 
call . . . using any automatic telephone dialing system''--leading to 
the question ``does the bar against `making any call using' an 
[automatic telephone dialing system] apply only to calls made using the 
equipment's [automatic telephone dialing system] functionality?'' The 
Bureau seeks comment on this question. If a caller does not use 
equipment as an automatic telephone dialing system, does the statutory 
prohibition apply? The court also noted that adopting such an 
interpretation could limit the scope of the statutory bar: ``the fact 
that a smartphone could be configured to function as an autodialer 
would not matter unless the relevant software in fact were loaded onto 
the phone and were used to initiate calls or send messages.'' Should 
the Commission adopt this approach? More broadly, how should the 
Commission interpret these various statutory provisions in harmony? The 
Bureau also seeks comment on a petition for declaratory ruling filed by 
the U.S. Chamber Institute for Legal Reform and several other parties, 
asking the Commission to clarify the definition of ``automatic 
telephone dialing system'' in light of the D.C. Circuit's decision.
    6. Second, the Bureau seeks comment on how to treat calls to 
reassigned wireless numbers under the TCPA. The statute carves out 
calls ``made with the prior express consent of the called party'' from 
its prohibitions. The court vacated as arbitrary and capricious the 
Commission's interpretation of the term ``called party,'' including a 
one-call safe harbor for callers to detect reassignments, and noted 
that the Commission ``consistently adopted a `reasonable reliance' 
approach when interpreting the TCPA's approval of calls based on `prior 
express consent.' '' The Bureau seeks comment on how to interpret the 
term ``called party'' for calls to reassigned numbers. Does the 
``called party'' refer to ``the person the caller expected to reach''? 
Or does it refer to the party the caller reasonably expected to reach? 
Or does it refer to ``the person actually reached, the wireless 
number's present-day subscriber after reassignment''? Or does it refer 
to a ```customary user' (`such as a close relative on a subscriber's 
family calling plan'), rather than . . . the subscriber herself''? What 
interpretation best implements the statute in light of the decision? 
Should the Commission maintain its reasonable-reliance approach to 
prior express consent? Is a reassigned numbers safe harbor necessary, 
and if so, what is the specific statutory authority for such a safe 
harbor? May the Commission, consistent with the statute, interpret the 
term ``called party'' to mean different things in differing contexts? 
How should the Commission's proceeding to establish a reassigned 
numbers database impact the interpretation, if at all?
    7. Third, the Bureau seeks comment on how a called party may revoke 
prior express consent to receive robocalls. The court found that ``a 
party may revoke her consent through any reasonable means clearly 
expressing a desire to receive no further messages from the caller.'' 
Such a standard, the

[[Page 26286]]

court made clear, means ``callers . . . have no need to train every 
retail employee on the finer points of revocation'' and have ``every 
incentive to avoid TCPA liability by making available clearly-defined 
and easy-to-use opt-out methods.'' The Bureau seeks comment on what 
opt-out methods would be sufficiently clearly defined and easy to use 
such that ``any effort to sidestep the available methods in favor of 
idiosyncratic or imaginative revocation requests might well be seen as 
unreasonable.'' For example, what opt-out method would be clearly 
defined and sufficiently easy to use for unwanted calls? Pushing a 
standardized code (such as ``*7'')? Saying ``stop calling'' in response 
to a live caller? Offering opt-out through a website? For unwanted 
texts, would a response of ``stop'' or similar keywords be sufficiently 
easy to use and clearly defined? What other methods would be 
sufficient? And must callers offer all or some combination of such 
methods to qualify?
    8. Fourth, in light of the court's decision on several key TCPA 
issues, the Bureau seeks renewed comment on two pending petitions for 
reconsideration of the Commission's Broadnet Declaratory Ruling. In the 
first, National Consumer Law Center asks the Commission to reconsider 
its interpretation of ``person'' and clarify that federal government 
contractors, regardless of their status as common-law agents, are 
``persons'' under the TCPA. In the second, Professional Services 
Council asks the Commission to reconsider its reliance on common-law 
agency principles and clarify that contractors acting on behalf of the 
federal government are not ``persons'' under the TCPA.
    9. The Bureau seeks comment on issues raised in those petitions and 
whether contractors acting on behalf of federal, state, and local 
governments are ``persons'' under the TCPA. While the question of 
whether contractors acting on behalf of state and local governments are 
``persons'' for purposes of the TCPA is not raised in the pending 
petitions for reconsideration of the Broadnet Declaratory Ruling, the 
Commission has not addressed these questions. Should it do so now? Are 
all three levels of government subject to the same legal framework in 
determining whether they are ``persons''? How is a state or local 
government official, or a contractor making calls on their behalf, 
legally similar to or different from federal government callers?
    10. Fifth, the Bureau seeks renewed comment on the pending petition 
for reconsideration of the 2016 Federal Debt Collection Rules, 
published at 81 FR 80594, November 16, 2016, filed by Great Lakes 
Higher Education Corp. et al. Great Lakes asks the Commission to 
reconsider several aspects of the rules, including the applicability of 
the TCPA's limits on calls to reassigned wireless numbers. In light of 
the court's opinion on reassigned numbers, the Bureau seeks renewed 
comment on this and other issues raised by the petition.
    11. The Bureau also seeks comment on the interplay between the 
Broadnet decision and the Budget Act amendments--if a federal 
contractor is not a ``person'' for purposes of the TCPA (as the 
Commission held in Broadnet), would the rules adopted in the 2016 
Federal Debt Collection Rules even apply to a federal contractor 
collecting a federal debt?
    Do persons who are not federal contractors collect federal debts? 
Or does the Budget Act amendment underlying the 2016 Federal Debt 
Collection Rules undermine the rationale of Broadnet?

Federal Communications Commission.
Gregory Haledjian,
Legal Advisor, Consumer and Governmental Affairs Bureau.
[FR Doc. 2018-12084 Filed 6-5-18; 8:45 am]
BILLING CODE 6712-01-P