Consumer and Governmental Affairs Bureau Seeks Comment on Interpretation of the Telephone Consumer Protection Act in Light of the D.C. Circuit's ACA International Decision, 26284-26286 [2018-12084]

Download as PDF 26284 Federal Register / Vol. 83, No. 109 / Wednesday, June 6, 2018 / Notices OMB. This decrease is due in part to a decrease in the number of new technician certifications and the time allotted for maintenance of the technician certification records. In this ICR EPA estimates the number of new technician certifications to be 40,000 per year, a decrease from the 50,000 estimated in the previous ICR, based on information provided by the largest technician certification program. The maintenance of these records is estimated to require 0.067 clerical work hours per certification, a decrease from 0.08 hours in the previous ICR, recognizing the move towards electronic recordkeeping which may be more efficient. Another reason for the burden decrease is a decrease in the market for small containers of CFC–12 refrigerant. In this ICR, EPA estimates that the number of purchases for resale only by uncertified purchasers of small cans will be 50% less than in the previous ICR, or approximately 69 purchases, because EPA estimates that there has been at least a 50% reduction in the CFC–12 vehicle fleet since 2015. Dated: May 23, 2018. Cynthia A. Newberg, Director, Stratospheric Protection Division. [FR Doc. 2018–12163 Filed 6–5–18; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION [CG Docket Nos. 18–152, 02–278; DA 18– 493] Consumer and Governmental Affairs Bureau Seeks Comment on Interpretation of the Telephone Consumer Protection Act in Light of the D.C. Circuit’s ACA International Decision Federal Communications Commission. ACTION: Notice. AGENCY: In this document, the Commission, via the Consumer and Governmental Affairs Bureau (Bureau), invites comment on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA) following the recent decision of the U.S. Court of Appeals for the District of Columbia in ACA International v. FCC: What constitutes an ‘‘automatic telephone dialing system,’’ how to treat calls to reassigned wireless numbers, and how a called party may revoke prior express consent to receive robocalls under the TCPA. In addition, the Bureau seeks to refresh the record on two daltland on DSKBBV9HB2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:35 Jun 05, 2018 Jkt 244001 pending petitions for reconsideration of the Commission’s Broadnet Declaratory Ruling and on a pending petition for reconsideration of the 2016 Federal Debt Collection Rules that implemented amendments to the TCPA. DATES: Comments are due on June 13, 2018. Reply comments are due on June 28, 2018. ADDRESSES: Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). • Electronic Filers: Documents may be filed electronically using the internet by accessing ECFS: https://www.fcc.gov/ ecfs/. • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. • Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. • All hand-delivered or messengerdelivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th Street SW, Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: For further information, contact Kristi Thornton of the Consumer and Governmental Affairs Bureau at (202) 418–2467 or Kristi.Thornton@fcc.gov; Christina Clearwater at (202) 418–1893 or Christina.Clearwater@fcc.gov; or Karen Schroeder at (202) 418–0654 or Karen.Schroeder@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Public Notice, document DA 18–493, released on May 14, 2018. The full text of document DA 18–493 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW, PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 Room CY–A257, Washington, DC 20554. A copy of document DA 18–493 and any subsequently filed documents in this matter may also be found by searching ECFS at: https://apps.fcc.gov/ecfs/ (insert CG Docket Nos. 18–152 or 02–278 into the Proceeding block). Interested parties may file comments on or before the dates indicated above in the Dates portion of this notice. All filings must reference CG Docket Nos. 18–152 and 02–278. Pursuant to § 1.1200 of the Commission’s rules, 47 CFR 1.1200, this matter shall be treated as a ‘‘permit-but-disclose’’ proceeding in accordance with the Commission’s ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission’s rules. In proceedings governed by § 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@ fcc.gov or call the Consumer and E:\FR\FM\06JNN1.SGM 06JNN1 Federal Register / Vol. 83, No. 109 / Wednesday, June 6, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES Governmental Affairs Bureau at (202) 418–0530 (voice), (844) 432–2275 (videophone), or (202) 418–0432 (TTY). Document DA 18–493 can also be downloaded in Word or Portable Document Format (PDF) at: https:// apps.fcc.gov/edocs_public/attachmatch/ DA-18-493A1.docx. Synopsis 1. In the Public Notice, the Bureau seeks comment on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA), following the recent decision of the U.S. Court of Appeals for the District of Columbia in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). First, the Bureau seeks comment on what constitutes an ‘‘automatic telephone dialing system.’’ The TCPA defines an automatic telephone dialing system as ‘‘equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.’’ The Commission had interpreted the term ‘‘capacity’’ to include a device ‘‘even if, for example, it requires the addition of software to actually perform the functions described in the definition’’— ‘‘an expansive interpretation of ‘capacity’ having the apparent effect of embracing any and all smartphones.’’ The court set aside this interpretation, finding the agency’s ‘‘capacious understanding of a device’s ‘capacity’ lies considerably beyond the agency’s zone of delegated authority.’’ 2. The Bureau seeks comment on how to interpret ‘‘capacity’’ in light of the court’s guidance. For example, how much user effort should be required to enable the device to function as an automatic telephone dialing system? Does equipment have the capacity if it requires the simple flipping of a switch? If the addition of software can give it the requisite functionality? If it requires essentially a top-to-bottom reconstruction of the equipment? In answering that question, what kinds (and how broad a swath) of telephone equipment might then be deemed to qualify as an automatic telephone dialing system? Notably, in light of the court’s guidance that the Commission’s prior interpretation had an ‘‘eyepopping sweep,’’ the Bureau seeks comment on how to more narrowly interpret the word ‘‘capacity’’ to better comport with the congressional findings and the intended reach of the statute. 3. The Bureau seeks further comment on the functions a device must be able to perform to qualify as an automatic telephone dialing system. Again, the TCPA defines an ‘‘automatic telephone VerDate Sep<11>2014 17:35 Jun 05, 2018 Jkt 244001 dialing system’’ as ‘‘equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.’’ Regarding the term ‘‘automatic,’’ the Commission explained that the ‘‘basic function[ ]’’ of an automatic telephone dialing system is to ‘‘dial numbers without human intervention’’ and yet ‘‘declined to ‘clarify[ ] that a dialer is not an [automatic telephone dialing system] unless it has the capacity to dial numbers without human intervention.’ ’’ As the court put it, ‘‘[t]hose side-by-side propositions are difficult to square.’’ The court further noted the Commission said another basic function was to ‘‘dial thousands of numbers in a short period of time,’’ which left parties ‘‘in a significant fog of uncertainty’’ on how to apply that notation. How ‘‘automatic’’ must dialing be for equipment to qualify as an automatic telephone dialing system? Does the word ‘‘automatic’’ ‘‘envision non-manual dialing of telephone numbers’’? Must such a system dial numbers without human intervention? Must it dial thousands of numbers in a short period of time? If so, what constitutes a short period of time for these purposes? 4. Regarding the provision concerning a ‘‘random or sequential number generator,’’ the court noted that ‘‘the 2015 ruling indicates in certain places that a device must be able to generate and dial random or sequential numbers to meet the TCPA’s definition of an autodialer, [and] it also suggests a competing view: that equipment can meet the statutory definition even if it lacks that capacity.’’ The court explained ‘‘the Commission cannot, consistent with reasoned decisionmaking, espouse both competing interpretations in the same order.’’ And so, like the court, the Bureau seeks comment on ‘‘which is it?’’ If equipment cannot itself dial random or sequential numbers, can that equipment be an automatic telephone dialing system? 5. The court also noted that the statute prohibits ‘‘mak[ing] any call . . . using any automatic telephone dialing system’’—leading to the question ‘‘does the bar against ‘making any call using’ an [automatic telephone dialing system] apply only to calls made using the equipment’s [automatic telephone dialing system] functionality?’’ The Bureau seeks comment on this question. If a caller does not use equipment as an automatic telephone dialing system, does the statutory prohibition apply? The court also noted that adopting such an interpretation could limit the scope PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 26285 of the statutory bar: ‘‘the fact that a smartphone could be configured to function as an autodialer would not matter unless the relevant software in fact were loaded onto the phone and were used to initiate calls or send messages.’’ Should the Commission adopt this approach? More broadly, how should the Commission interpret these various statutory provisions in harmony? The Bureau also seeks comment on a petition for declaratory ruling filed by the U.S. Chamber Institute for Legal Reform and several other parties, asking the Commission to clarify the definition of ‘‘automatic telephone dialing system’’ in light of the D.C. Circuit’s decision. 6. Second, the Bureau seeks comment on how to treat calls to reassigned wireless numbers under the TCPA. The statute carves out calls ‘‘made with the prior express consent of the called party’’ from its prohibitions. The court vacated as arbitrary and capricious the Commission’s interpretation of the term ‘‘called party,’’ including a one-call safe harbor for callers to detect reassignments, and noted that the Commission ‘‘consistently adopted a ‘reasonable reliance’ approach when interpreting the TCPA’s approval of calls based on ‘prior express consent.’ ’’ The Bureau seeks comment on how to interpret the term ‘‘called party’’ for calls to reassigned numbers. Does the ‘‘called party’’ refer to ‘‘the person the caller expected to reach’’? Or does it refer to the party the caller reasonably expected to reach? Or does it refer to ‘‘the person actually reached, the wireless number’s present-day subscriber after reassignment’’? Or does it refer to a ‘‘‘customary user’ (‘such as a close relative on a subscriber’s family calling plan’), rather than . . . the subscriber herself’’? What interpretation best implements the statute in light of the decision? Should the Commission maintain its reasonable-reliance approach to prior express consent? Is a reassigned numbers safe harbor necessary, and if so, what is the specific statutory authority for such a safe harbor? May the Commission, consistent with the statute, interpret the term ‘‘called party’’ to mean different things in differing contexts? How should the Commission’s proceeding to establish a reassigned numbers database impact the interpretation, if at all? 7. Third, the Bureau seeks comment on how a called party may revoke prior express consent to receive robocalls. The court found that ‘‘a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller.’’ Such a standard, the E:\FR\FM\06JNN1.SGM 06JNN1 26286 Federal Register / Vol. 83, No. 109 / Wednesday, June 6, 2018 / Notices court made clear, means ‘‘callers . . . have no need to train every retail employee on the finer points of revocation’’ and have ‘‘every incentive to avoid TCPA liability by making available clearly-defined and easy-touse opt-out methods.’’ The Bureau seeks comment on what opt-out methods would be sufficiently clearly defined and easy to use such that ‘‘any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.’’ For example, what opt-out method would be clearly defined and sufficiently easy to use for unwanted calls? Pushing a standardized code (such as ‘‘*7’’)? Saying ‘‘stop calling’’ in response to a live caller? Offering opt-out through a website? For unwanted texts, would a response of ‘‘stop’’ or similar keywords be sufficiently easy to use and clearly defined? What other methods would be sufficient? And must callers offer all or some combination of such methods to qualify? 8. Fourth, in light of the court’s decision on several key TCPA issues, the Bureau seeks renewed comment on two pending petitions for reconsideration of the Commission’s Broadnet Declaratory Ruling. In the first, National Consumer Law Center asks the Commission to reconsider its interpretation of ‘‘person’’ and clarify that federal government contractors, regardless of their status as common-law agents, are ‘‘persons’’ under the TCPA. In the second, Professional Services Council asks the Commission to reconsider its reliance on common-law agency principles and clarify that contractors acting on behalf of the federal government are not ‘‘persons’’ under the TCPA. 9. The Bureau seeks comment on issues raised in those petitions and whether contractors acting on behalf of federal, state, and local governments are ‘‘persons’’ under the TCPA. While the question of whether contractors acting on behalf of state and local governments are ‘‘persons’’ for purposes of the TCPA is not raised in the pending petitions for reconsideration of the Broadnet Declaratory Ruling, the Commission has not addressed these questions. Should it do so now? Are all three levels of government subject to the same legal framework in determining whether they are ‘‘persons’’? How is a state or local government official, or a contractor making calls on their behalf, legally similar to or different from federal government callers? 10. Fifth, the Bureau seeks renewed comment on the pending petition for reconsideration of the 2016 Federal Debt Collection Rules, published at 81 FR 80594, November 16, 2016, filed by Great Lakes Higher Education Corp. et al. Great Lakes asks the Commission to reconsider several aspects of the rules, including the applicability of the TCPA’s limits on calls to reassigned wireless numbers. In light of the court’s opinion on reassigned numbers, the Bureau seeks renewed comment on this and other issues raised by the petition. 11. The Bureau also seeks comment on the interplay between the Broadnet decision and the Budget Act amendments—if a federal contractor is not a ‘‘person’’ for purposes of the TCPA (as the Commission held in Broadnet), would the rules adopted in the 2016 Federal Debt Collection Rules even apply to a federal contractor collecting a federal debt? Do persons who are not federal contractors collect federal debts? Or does the Budget Act amendment underlying the 2016 Federal Debt Collection Rules undermine the rationale of Broadnet? Federal Communications Commission. Gregory Haledjian, Legal Advisor, Consumer and Governmental Affairs Bureau. [FR Doc. 2018–12084 Filed 6–5–18; 8:45 am] BILLING CODE 6712–01–P FEDERAL DEPOSIT INSURANCE CORPORATION Notice of Termination of Receiverships The Federal Deposit Insurance Corporation (FDIC or Receiver), as Receiver for each of the following insured depository institutions, was charged with the duty of winding up the affairs of the former institutions and liquidating all related assets. The Receiver has fulfilled its obligations and made all dividend distributions required by law. NOTICE OF TERMINATION OF RECEIVERSHIPS Fund daltland on DSKBBV9HB2PROD with NOTICES 10092 10189 10252 10388 Receivership name ..................... ..................... ..................... ..................... City Community First Bank ................................................. Rainier Pacific Bank .................................................... High Desert State Bank ............................................... The First National Bank of Olathe ............................... Prineville ........................... Tacoma ............................. Albuquerque ..................... Olathe ............................... The Receiver has further irrevocably authorized and appointed FDICCorporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary, including but not limited to releases, discharges, satisfactions, endorsements, assignments, and deeds. Effective on the termination dates listed above, the Receiverships have been terminated, the Receiver has been discharged, and the Receiverships have ceased to exist as legal entities. Dated at Washington, DC, on May 31, 2018. VerDate Sep<11>2014 17:35 Jun 05, 2018 Jkt 244001 Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. 2018–12092 Filed 6–5–18; 8:45 am] BILLING CODE 6714–01–P FEDERAL RESERVE SYSTEM Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB Board of Governors of the Federal Reserve System. AGENCY: PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 State OR WA NM KS Termination date 6/1/2018 6/1/2018 6/1/2018 6/1/2018 The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Survey of Consumer Finances (FR 3059; OMB No.7100–0287). FOR FURTHER INFORMATION CONTACT: Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452–3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263–4869, Board of Governors of the Federal Reserve System, Washington, DC 20551. SUMMARY: E:\FR\FM\06JNN1.SGM 06JNN1

Agencies

[Federal Register Volume 83, Number 109 (Wednesday, June 6, 2018)]
[Notices]
[Pages 26284-26286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12084]


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FEDERAL COMMUNICATIONS COMMISSION

[CG Docket Nos. 18-152, 02-278; DA 18-493]


Consumer and Governmental Affairs Bureau Seeks Comment on 
Interpretation of the Telephone Consumer Protection Act in Light of the 
D.C. Circuit's ACA International Decision

AGENCY: Federal Communications Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission, via the Consumer and 
Governmental Affairs Bureau (Bureau), invites comment on several issues 
related to interpretation and implementation of the Telephone Consumer 
Protection Act (TCPA) following the recent decision of the U.S. Court 
of Appeals for the District of Columbia in ACA International v. FCC: 
What constitutes an ``automatic telephone dialing system,'' how to 
treat calls to reassigned wireless numbers, and how a called party may 
revoke prior express consent to receive robocalls under the TCPA. In 
addition, the Bureau seeks to refresh the record on two pending 
petitions for reconsideration of the Commission's Broadnet Declaratory 
Ruling and on a pending petition for reconsideration of the 2016 
Federal Debt Collection Rules that implemented amendments to the TCPA.

DATES: Comments are due on June 13, 2018. Reply comments are due on 
June 28, 2018.

ADDRESSES: Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Documents may be filed electronically 
using the internet by accessing ECFS: https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th Street SW, Room TW-A325, Washington, DC 20554. The filing 
hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held 
together with rubber bands or fasteners. Any envelopes and boxes must 
be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For further information, contact 
Kristi Thornton of the Consumer and Governmental Affairs Bureau at 
(202) 418-2467 or [email protected]; Christina Clearwater at 
(202) 418-1893 or [email protected]; or Karen Schroeder at 
(202) 418-0654 or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public 
Notice, document DA 18-493, released on May 14, 2018. The full text of 
document DA 18-493 will be available for public inspection and copying 
via ECFS, and during regular business hours at the FCC Reference 
Information Center, Portals II, 445 12th Street SW, Room CY-A257, 
Washington, DC 20554. A copy of document DA 18-493 and any subsequently 
filed documents in this matter may also be found by searching ECFS at: 
https://apps.fcc.gov/ecfs/ (insert CG Docket Nos. 18-152 or 02-278 into 
the Proceeding block).
    Interested parties may file comments on or before the dates 
indicated above in the Dates portion of this notice. All filings must 
reference CG Docket Nos. 18-152 and 02-278. Pursuant to Sec.  1.1200 of 
the Commission's rules, 47 CFR 1.1200, this matter shall be treated as 
a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must: (1) List all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made; and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f) of the rules or for which the 
Commission has made available a method of electronic filing, written ex 
parte presentations and memoranda summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). Participants in this proceeding should familiarize 
themselves with the Commission's ex parte rules.
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer and

[[Page 26285]]

Governmental Affairs Bureau at (202) 418-0530 (voice), (844) 432-2275 
(videophone), or (202) 418-0432 (TTY). Document DA 18-493 can also be 
downloaded in Word or Portable Document Format (PDF) at: https://apps.fcc.gov/edocs_public/attachmatch/DA-18-493A1.docx.

Synopsis

    1. In the Public Notice, the Bureau seeks comment on several issues 
related to interpretation and implementation of the Telephone Consumer 
Protection Act (TCPA), following the recent decision of the U.S. Court 
of Appeals for the District of Columbia in ACA International v. FCC, 
885 F.3d 687 (D.C. Cir. 2018).
    First, the Bureau seeks comment on what constitutes an ``automatic 
telephone dialing system.'' The TCPA defines an automatic telephone 
dialing system as ``equipment which has the capacity--(A) to store or 
produce telephone numbers to be called, using a random or sequential 
number generator; and (B) to dial such numbers.'' The Commission had 
interpreted the term ``capacity'' to include a device ``even if, for 
example, it requires the addition of software to actually perform the 
functions described in the definition''--``an expansive interpretation 
of `capacity' having the apparent effect of embracing any and all 
smartphones.'' The court set aside this interpretation, finding the 
agency's ``capacious understanding of a device's `capacity' lies 
considerably beyond the agency's zone of delegated authority.''
    2. The Bureau seeks comment on how to interpret ``capacity'' in 
light of the court's guidance. For example, how much user effort should 
be required to enable the device to function as an automatic telephone 
dialing system? Does equipment have the capacity if it requires the 
simple flipping of a switch? If the addition of software can give it 
the requisite functionality? If it requires essentially a top-to-bottom 
reconstruction of the equipment? In answering that question, what kinds 
(and how broad a swath) of telephone equipment might then be deemed to 
qualify as an automatic telephone dialing system? Notably, in light of 
the court's guidance that the Commission's prior interpretation had an 
``eye-popping sweep,'' the Bureau seeks comment on how to more narrowly 
interpret the word ``capacity'' to better comport with the 
congressional findings and the intended reach of the statute.
    3. The Bureau seeks further comment on the functions a device must 
be able to perform to qualify as an automatic telephone dialing system. 
Again, the TCPA defines an ``automatic telephone dialing system'' as 
``equipment which has the capacity--(A) to store or produce telephone 
numbers to be called, using a random or sequential number generator; 
and (B) to dial such numbers.'' Regarding the term ``automatic,'' the 
Commission explained that the ``basic function[ ]'' of an automatic 
telephone dialing system is to ``dial numbers without human 
intervention'' and yet ``declined to `clarify[ ] that a dialer is not 
an [automatic telephone dialing system] unless it has the capacity to 
dial numbers without human intervention.' '' As the court put it, 
``[t]hose side-by-side propositions are difficult to square.'' The 
court further noted the Commission said another basic function was to 
``dial thousands of numbers in a short period of time,'' which left 
parties ``in a significant fog of uncertainty'' on how to apply that 
notation. How ``automatic'' must dialing be for equipment to qualify as 
an automatic telephone dialing system? Does the word ``automatic'' 
``envision non-manual dialing of telephone numbers''? Must such a 
system dial numbers without human intervention? Must it dial thousands 
of numbers in a short period of time? If so, what constitutes a short 
period of time for these purposes?
    4. Regarding the provision concerning a ``random or sequential 
number generator,'' the court noted that ``the 2015 ruling indicates in 
certain places that a device must be able to generate and dial random 
or sequential numbers to meet the TCPA's definition of an autodialer, 
[and] it also suggests a competing view: that equipment can meet the 
statutory definition even if it lacks that capacity.'' The court 
explained ``the Commission cannot, consistent with reasoned 
decisionmaking, espouse both competing interpretations in the same 
order.'' And so, like the court, the Bureau seeks comment on ``which is 
it?'' If equipment cannot itself dial random or sequential numbers, can 
that equipment be an automatic telephone dialing system?
    5. The court also noted that the statute prohibits ``mak[ing] any 
call . . . using any automatic telephone dialing system''--leading to 
the question ``does the bar against `making any call using' an 
[automatic telephone dialing system] apply only to calls made using the 
equipment's [automatic telephone dialing system] functionality?'' The 
Bureau seeks comment on this question. If a caller does not use 
equipment as an automatic telephone dialing system, does the statutory 
prohibition apply? The court also noted that adopting such an 
interpretation could limit the scope of the statutory bar: ``the fact 
that a smartphone could be configured to function as an autodialer 
would not matter unless the relevant software in fact were loaded onto 
the phone and were used to initiate calls or send messages.'' Should 
the Commission adopt this approach? More broadly, how should the 
Commission interpret these various statutory provisions in harmony? The 
Bureau also seeks comment on a petition for declaratory ruling filed by 
the U.S. Chamber Institute for Legal Reform and several other parties, 
asking the Commission to clarify the definition of ``automatic 
telephone dialing system'' in light of the D.C. Circuit's decision.
    6. Second, the Bureau seeks comment on how to treat calls to 
reassigned wireless numbers under the TCPA. The statute carves out 
calls ``made with the prior express consent of the called party'' from 
its prohibitions. The court vacated as arbitrary and capricious the 
Commission's interpretation of the term ``called party,'' including a 
one-call safe harbor for callers to detect reassignments, and noted 
that the Commission ``consistently adopted a `reasonable reliance' 
approach when interpreting the TCPA's approval of calls based on `prior 
express consent.' '' The Bureau seeks comment on how to interpret the 
term ``called party'' for calls to reassigned numbers. Does the 
``called party'' refer to ``the person the caller expected to reach''? 
Or does it refer to the party the caller reasonably expected to reach? 
Or does it refer to ``the person actually reached, the wireless 
number's present-day subscriber after reassignment''? Or does it refer 
to a ```customary user' (`such as a close relative on a subscriber's 
family calling plan'), rather than . . . the subscriber herself''? What 
interpretation best implements the statute in light of the decision? 
Should the Commission maintain its reasonable-reliance approach to 
prior express consent? Is a reassigned numbers safe harbor necessary, 
and if so, what is the specific statutory authority for such a safe 
harbor? May the Commission, consistent with the statute, interpret the 
term ``called party'' to mean different things in differing contexts? 
How should the Commission's proceeding to establish a reassigned 
numbers database impact the interpretation, if at all?
    7. Third, the Bureau seeks comment on how a called party may revoke 
prior express consent to receive robocalls. The court found that ``a 
party may revoke her consent through any reasonable means clearly 
expressing a desire to receive no further messages from the caller.'' 
Such a standard, the

[[Page 26286]]

court made clear, means ``callers . . . have no need to train every 
retail employee on the finer points of revocation'' and have ``every 
incentive to avoid TCPA liability by making available clearly-defined 
and easy-to-use opt-out methods.'' The Bureau seeks comment on what 
opt-out methods would be sufficiently clearly defined and easy to use 
such that ``any effort to sidestep the available methods in favor of 
idiosyncratic or imaginative revocation requests might well be seen as 
unreasonable.'' For example, what opt-out method would be clearly 
defined and sufficiently easy to use for unwanted calls? Pushing a 
standardized code (such as ``*7'')? Saying ``stop calling'' in response 
to a live caller? Offering opt-out through a website? For unwanted 
texts, would a response of ``stop'' or similar keywords be sufficiently 
easy to use and clearly defined? What other methods would be 
sufficient? And must callers offer all or some combination of such 
methods to qualify?
    8. Fourth, in light of the court's decision on several key TCPA 
issues, the Bureau seeks renewed comment on two pending petitions for 
reconsideration of the Commission's Broadnet Declaratory Ruling. In the 
first, National Consumer Law Center asks the Commission to reconsider 
its interpretation of ``person'' and clarify that federal government 
contractors, regardless of their status as common-law agents, are 
``persons'' under the TCPA. In the second, Professional Services 
Council asks the Commission to reconsider its reliance on common-law 
agency principles and clarify that contractors acting on behalf of the 
federal government are not ``persons'' under the TCPA.
    9. The Bureau seeks comment on issues raised in those petitions and 
whether contractors acting on behalf of federal, state, and local 
governments are ``persons'' under the TCPA. While the question of 
whether contractors acting on behalf of state and local governments are 
``persons'' for purposes of the TCPA is not raised in the pending 
petitions for reconsideration of the Broadnet Declaratory Ruling, the 
Commission has not addressed these questions. Should it do so now? Are 
all three levels of government subject to the same legal framework in 
determining whether they are ``persons''? How is a state or local 
government official, or a contractor making calls on their behalf, 
legally similar to or different from federal government callers?
    10. Fifth, the Bureau seeks renewed comment on the pending petition 
for reconsideration of the 2016 Federal Debt Collection Rules, 
published at 81 FR 80594, November 16, 2016, filed by Great Lakes 
Higher Education Corp. et al. Great Lakes asks the Commission to 
reconsider several aspects of the rules, including the applicability of 
the TCPA's limits on calls to reassigned wireless numbers. In light of 
the court's opinion on reassigned numbers, the Bureau seeks renewed 
comment on this and other issues raised by the petition.
    11. The Bureau also seeks comment on the interplay between the 
Broadnet decision and the Budget Act amendments--if a federal 
contractor is not a ``person'' for purposes of the TCPA (as the 
Commission held in Broadnet), would the rules adopted in the 2016 
Federal Debt Collection Rules even apply to a federal contractor 
collecting a federal debt?
    Do persons who are not federal contractors collect federal debts? 
Or does the Budget Act amendment underlying the 2016 Federal Debt 
Collection Rules undermine the rationale of Broadnet?

Federal Communications Commission.
Gregory Haledjian,
Legal Advisor, Consumer and Governmental Affairs Bureau.
[FR Doc. 2018-12084 Filed 6-5-18; 8:45 am]
BILLING CODE 6712-01-P
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