Last week the D.C. Circuit issued its mandate in ACA Int’l v. FCC making that decision final. Not missing a beat, the FCC has already sought comments on key issues regarding the Telephone Consumer Protection Act (TCPA) left unclear in the wake of ACA. Primarily, the public notice issued yesterday identifies the following issues for comment: the definition of ATDS, how to treat calls to reassigned numbers, and standards for revoking consent. Notably, the notice for comments indicates that the FCC may consider bright-line rules that would provide clarity which has been so clearly lacking in past years.

As to the definition of ATDS, the notice solicits “comment on how to more narrowly interpret the word ‘capacity’ to better comport with the congressional findings and the intended reach of the statute.” Additionally, it seeks comments aimed at addressing the plain language of the statute, which unequivocally requires random number generation, noting that in ACA the court stated that “dialing numbers from a set list cannot, by itself, qualify as dialing random or sequential numbers . . . .” Another point recognized by the notice is that almost all dialing platforms have many modes of functionality only a handful of which qualify as autodialing.

The notice takes a wide view of the reassigned number issue, identifying several different interpretations of “called party,” which could mean, for example, “the party the caller reasonably expected to reach . . . .” The FCC also appears to have heard the post-ACA pundits calling for a reasonable-reliance standard, specifically asking for comment on whether that standard should apply.

Lastly, the notice looks to the wisdom of adopting rules regarding “clearly defined and easy-to-use” methods of revocation. The notice set a June 13, 2018 deadline for comments, with replies due June 28, 2018.