WASHINGTON D.C. —­­ Following the ruling by the D.C. Circuit court this past March in ACA International  v. FCC  the FCC has sought comment on how it defines the term “automatic telephone dialing system” (“ATDS”). The ACA court rolled back the FCC’s overly broad interpretation of Congress’s intent in writing the Telephone Consumer Protection Act (TCPA).

Today, TechFreedom filed comments urging the FCC to follow the narrow language of the statute and limit prohibited ATDS’ to devices that “store or produce telephone numbers to be called, using a random or sequential number generator; and . . . to dial such numbers.”

“Everybody hates telemarketing calls,” said TechFreedom Adjunct Fellow Charles Kennedy.  “But in the FCC’s rush to protect consumers, they lost sight of Congressional intent, which was to specifically ban only calling systems that randomly or sequentially dialed numbers which may not even exist, or might belong to public safety users whose systems become unavailable when deluged with telemarketing cold calls.”

Commissioner Pai accurately captured Congress’s expressed intent in his Dissenting Statement Accompanying the 2015 TCPA Declaratory Ruling and Order:

Congress expressly targeted equipment that enables telemarketers to dial random or sequential numbers in the TCPA. If callers have abandoned that equipment, then the TCPA has accomplished the precise goal Congress set out for it. And if the FCC wishes to take action against newer technologies beyond the TCPA’s bailiwick, it must get express authorization from Congress – not make up the law as it goes along.

The ACA Court rightly noted that consumers using smartphones were walking violations of the TCPA under the FCC’s expansive definition of an ATDS,” Kennedy continued. “Given the cottage industry of trial lawyers filing class action suits in order to collect statutory damages, organizations needing to make customer service calls were forced to adopt ‘human in the loop’ systems that introduce expense and errors. Such systemic errors include manually misdialed calls that themselves could be TCPA violations. It’s a vicious circle of legal liability.”

“Ultimately,” Kennedy concluded, “the solution to unwanted robocalls is for consumers to sign up on the Do Not Call Registry and for both the FCC and FTC to vigorously enforce compliance with that registry.”


We can be reached for comment at media@techfreedom.org. See more of our work on the TCPA, including:

  • Our March press release: “More Reasons to Fix the Telephone Consumer Protection Act”
  • Tech Policy Podcast #172: Future of Internet Regulation with FCC Chairman Ajit Pai discussing President Trump’s enforcement actions, such as the one’s targeting Jeff Bezos of Amazon,  and the legality surrounding such activity.