Telephone Consumer Protection Act (TCPA) and telemarketing lawyer Richard B. Newman was recently asked to author an article for DataGuidance, a global platform for privacy professionals, on circuit court splits in the United States on the definition of “automated telephone dialing system.”

In the article, “Diverging Court Decisions Over Definition of ATDS Under ATDS,” Richard discusses how the recent ACA International decision from the D.C. Circuit changed the TCPA litigation landscape by nullifying the Federal Communication Commission’s 2015 ATDS guidance. The article also covers a recent Ninth Circuit decision which has nationwide split on the definition of an ATDS.

TCPA Attorney on ATDS Definition

The year 2018 brought with it significant developments in the TCPA litigation and regulatory universe. Richard discusses a number of different interpretations, applications and judicial opinions that are likely to continue throughout 2019, including whether a predictive dialer constitutes an ATDS, the interplay between “present capacity” to dial numbers without human intervention v. “potential capacity” to do so, the weight of prior FCC orders, random and sequential number generation capacity, reassigned numbers, and consumer consent and reasonable reliance.

In addition to the foregoing, the article delves into different specific circuit court rulings that continue to widen the judicial divide. Richard discusses the impact that such inconsistency has on telemarketers and the need for certainty and predictability when it comes to compliance and potential liability.

Richard is an authority on TCPA litigation defense. He stated that “[t]he FCC is expected to release a new interpretation of what constitutes an ATDS, one that will add clarity to this vital issue. Many believe that FCC tea leaves signal a favorable interpretation for marketers. Congress could also intervene and pass a TCPA amendment clarifying the definition, but with the slow pace of Congress this may be a long shot.”

The article can be seen, here.

Reassigned Number Database

Importantly for the telemarketing business community, the FCC has announced the adoption of rule regarding the establishment of a comprehensive reassigned numbers database. The database will be administered by a third-party administrator, which will be selected through a bidding process.

Providers will soon be required to report the last date of permanent disconnection for phone numbers on a monthly basis. Relatively smaller providers will be provided a reporting grace period. The FCC will also be implementing a 45-day waiting period before a telephone number may be reassigned.

Rules have also been established for callers, who will be able to search the database via a telephone number and a date. The database will inform callers whether the telephone number has been disconnected.

Like the Do Not Call Registry, the FCC reassigned numbers database will require callers to pay for its use and certify that its use is for placing calls in a lawful manner. Third-party vendors will be permitted to use the database, as well.

A safe harbor exists for those that can establish reasonable reliance on the database. Callers will have the burden of establishing that they acted in good faith.

If you are interested in learning more about TCPA compliance, or if you have bene named in a telemarketing-related litigation matter, contact the author at [email protected].

Richard B. Newman is a TCPA and telemarketing lawyer at Hinch Newman LLP.

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