CINCINNATI—The U.S. Court of Appeals for the Sixth Circuit recently agreed with the Ninth and Second Circuits on an expanded definition of an automatic telephone dialing system (autodialer) under the Telephone Consumer Protection Act (TCPA), providing further evidence of a split between multiple federal appeals courts on this issue, according to NAFCU.
The Sixth Circuit has jurisdiction over federal appeals arising from the states of Kentucky, Michigan, Ohio and Tennessee.
As CUToday.info reported earlier, the U.S. Supreme Court last month agreed to hear a lawsuit challenging the constitutionality of the TCPA’s definition of autodialer and will specifically consider whether it “encompasses any device that can store and automatically dial telephone numbers – even if that device cannot store or produce them using a random or sequential number generator.”
In September 2018, the U.S. Court of Appeals for the Ninth Circuit expanded the definition of an autodialer, keeping it largely in line with the one adopted by the Federal Communications Commission (FCC) in its 2015 Declaratory Ruling and Order. Prior to that decision, 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 TCPA by calling a reassigned number. In contrast, the Third and Seventh Circuit courts have refused to adopt a broad definition of autodialer.
NAFCU Position
NAFCU noted it has argued that devices should only be considered an ATDS if "it has the capacity to dial numbers without human intervention." If equipment is not being used as an ATDS, it should not be subject to the TCPA's authority.
Last month, the FCC issued an order related to the establishment of a safe harbor from liability for voice service providers (VSPs) that block unwanted calls, as well as a further notice of proposed rulemaking (FNPR) to better inform call blocking efforts.
The FCC is currently accepting comment on the FNPR on whether VSPs should provide notification of blocking to callers rather than the policing of networks.