Explain it to Me: The FCC’s 2003 and 2008 Predictive Dialer Rulings

The Federal Communications Commission (FCC) is the federal agency responsible to implement and interpret the Telephone Consumer Protection Act (“TCPA”). It has the power to issue declaratory rulings and to implement rules that (are supposed to) make the TCPA easier to understand. It has the power to interpret vague phrases in the TCPA and to issue new rules that further the intentions of Congress in enacting the statute (assuming proper procedural rules are followed). Its rulings and regulations are binding on courts across the country based.

In 2003 the FCC issued a declaratory ruling and determined that predictive dialers–dialers that use algorithms to predict when an agent will be available to take a call–meet the definition of an automated telephone dialing system (“ATDS”) under the TCPA because “[t]he basic function of such equipment [is] the capacity to dial numbers without human intervention.” Although this ruling does not appear to track the statute’s definition of ATDS–requiring the use of a random or sequential number generator. The 2003 Predictive Dialer ruling was not appealed.

In 2008 the FCC again held that predictive dialers are covered by the TCPA in another declaratory ruling.

The 2003 and 2008 FCC Predictive Dialer rulings were treated as binding by courts across the country and dozens of cases have followed them.

The rulings were also ratified by the FCC in its 2015 TCPA Omnibus ruling.

Then, in March, 2018 the D.C. Circuit Court of Appeal set aside portions of the 2015 TCPA Omnibus ruling in ACA International, 885 F.3d 687, 695 (D.C. Cir. 2018) and noted that the 2003 and 2008 FCC Predictive Dialer rulings were inconsistent with the language of the 2015 TCPA Omnibus ruling regarding the required functionalities of an ATDS. As of this writing (8/6/18) courts are debating whether or not ACA Int’l set aside the 2003 and 2008 Predictive Dialer Rulings or only the 2015 TCPA Omnibus ruling.