Hitting a Brick Wall: Block of 14 Democratic Senators ask FCC’s Chairman to Broaden TCPA Protections to Prevent Robocalls

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Yesterday a block of 14 Democratic senators–lead by Massachusetts Senators Markey and Warren, but including Bernie Sanders and many others– sent a letter to FCC Chairman Ajit Pai asking the FCC to maintain most of its robocall protections under the TCPA following ACA Int’l. The letter can be found here.

The letter focuses on three key issues. First it asks the Commission to broadly interpret the phrase ATDS to “comprehensively” cover autodialers, while carving out every day devices like smartphones from the statute’s coverage. This, of course, is designed to address the growing push for limiting the definition of ATDS to the statutory requirements of random or sequential number generation.

Next, it urges the Commission to interpret “called party” to mean the person “actual party that is called”–whatever that means–and not the intended recipient. This comes in response to the FCC’s Public Notice that seems to favor the “expected recipient” definition of “called party.”

Finally, the letter asks the FCC to clarify that consumers are free to revoke their consent–even if they enter into contractual provisions that make their consent irrevocable. This last point departs markedly from the state of existing law, as even the FCC seems to agree that parties can contractually agree to revocation paradigms that suit their needs. The case law also confirms that contractual revocation provisions are enforceable, and at least one Circuit Court of Appeal has held directly that consent provisions lacking a revocation provision are simply not revocable. See Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).