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FCC Seeks Comment on Interpretation of the TCPA in Wake of D.C. Circuit Opinion

PACE seeks to be the voice of its members and asks for your input!  Member perspectives are vital to the success of PACE efforts to educate the FCC on these important issues.
Dear PACE Member,
 
PACE seeks to be the voice of its members and asks for your input!  Member perspectives are vital to the success of PACE efforts to educate the FCC on these important issues. Please send your recommendations to Josh Stevens at Mac Murray & Shuster, LLP, jstevens@mslawgroup.com. Comments are due to the FCC on June 13th, so please share your thoughts by June 9th.  To help you get started, the Government Affairs Committee put together a short tutorial that will walk you step-by-step through the commenting process.  You can also find a comment template here.


Following the D.C. Circuit's decision in ACA Int'l v. FCC, the FCC is soliciting comments on several TCPA issues.  PACE intends to file comments responding to three categories of questions:
1.      What is an ATDS?
a.      How should the term "capacity" be interpreted?  How much user effort (e.g. flipping a switch v. downloading software v. top-to-bottom reconstruction) should be required to avoid a finding that the system is capable of functioning as an ATDS?  How should the FCC limit the scope of capacity to avoid overbreadth concerns? 
b.      What functions must a device be capable of performing to be an ATDS?  Dialing without human intervention?  Dialing thousands of numbers in a short period of time?  How short a period of time?  Must the equipment be able to generate and dial random or sequential numbers?
c.       Does the statute only apply to calls made using the equipment's ATDS functionality?  If so, how should the FCC interpret the various statutory provisions (including the word "capacity") in harmony?
 
2.      How should the FCC treat calls to reassigned wireless numbers?
a.      How should the FCC interpret the term "called party"?  Is it the person the caller expected to reach, the person the caller reasonably expected to reach, the person the caller actually reached or is some other definition appropriate?  What about a non-subscriber who is the customary user of the phone number?  Can the term mean different things in different contexts?
b.      Should the FCC maintain its approach that callers may reasonably rely on consent provided by an individual?
c.       Is a reassigned number safe harbor necessary?  If so, what is the statutory authority for creating a safe harbor? 
d.      How should the FCC's proceeding, related to a reassigned number database, impact the FCC's interpretation?
 
3.      How may a called party revoke consent?
a.      What opt-out methods (for calls and texts) are sufficiently clear and easy-to-use that efforts to sidestep those methods should be deemed unreasonable?
b.      Must callers offer all or some combination of such methods to qualify for protection against unreasonable opt-out requests?
 
While you are contributing your ideas, please also consider making a donation to the PACE Impact Fund. Impact Fund dollars support PACE's efforts to inform policymaking at the federal and state levels. Without support from members like you, PACE cannot effectively advocate for its members' interests. To find out more about the Impact Fund please contact Stuart Discount, CEO at 317-522-2799 or at stuart.discount@paceassociation.org.
 
As a reminder, the 2018 PACE Washington Summit, at the InterContinental at the Wharf, in Washington D.C., will take place September 23rd – 25th.  The Washington Summit is where you will hear directly from regulators about the latest changes in consumer protection and risk management.  If you are involved in managing risk for your company, this is a must attend event.  Early-Bird registration and hotel reservations are available on the PACE website. 

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