February 04, 2019

Supreme Court could review TCPA 'autodialer' lawsuit

cell phoneThe Supreme Court has been asked to review the appellate court decision from last September, in which the U.S. Court of Appeals for the Ninth Circuit expanded the definition of an autodialer. NAFCU has called for the Federal Communications Commission (FCC) to take a narrower approach to defining an automatic telephone dialing system (ATDS).

The Ninth Circuit's decision kept the autodialer definition largely in line with the one adopted by the FCC in its 2015 Declaratory Ruling and Order. In March 2018, the U.S. Court of Appeals for the D.C. Circuit invalidated the FCC's definition of autodialer and rejected the commission's interpretation of when a caller violates the Telephone Consumer Protection Act (TCPA) by calling a reassigned number. Similarly, the Second and Third Circuit Courts have adopted a narrower definition of the FCC's order.

In the lawsuit, Marks v. Crunch San Diego, the Ninth Circuit ruled in favor of Marks. Crunch San Diego filed the petition for writ of certiorari with the Supreme Court last week asking it to review the decision. This request could delay the FCC's efforts to clarify the autodialer definition.

NAFCU has actively worked with the FCC over the past three years to obtain more clarity and flexibility under the TCPA so credit unions can contact their members without fear of breaking the law.

Most recently, NAFCU has raised concerns over mixed court decisions on the FCC's definition of autodialer and called the Ninth Circuit's decision "flawed." The association has called for the FCC to take a narrower approach to defining an automatic telephone dialing system (ATDS).

Lawmakers have also urged the FCC to reform the TCPA. Sens. John Thune, R-S.D., and Ed Markey, D-Mass., last Congress introduced the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act (S. 3655) in an effort to deter criminal robocall violations.

The FCC in December approved of a rulemaking to create a NAFCU-sought single, reassigned numbers database to aid in the elimination of illegal robocalls.

The Supreme Court is currently considering another case related to the TCPA, specifically related to advertisements. It is expected to issue its decision early this year.