The TCPA Rulemaking Case Smartphone Debacle

By George Khoury, Esq. on March 26, 2018 | Last updated on March 21, 2019

While using your smartphone, have you ever sent a text message to or called someone who didn't you give you their number, or explicitly consent for you to call or text? If you have, there's good and bad news.

First the bad news: Apparently, you broke the current FCC commissioners understanding of the TCPA (Telephone Consumer Protection Act) by texting/calling without consent. Now the good news: The D.C. Circuit just killed the FCC's interpretation of the rule that could have, theoretically (in some magical land), been used to allow individuals to sue each other over, and this is according the majority opinion here, unexpected social gathering invitations.

Wait? What?

Okay. So the ACA International v. FCC case is a behemoth that covers lots of different issues and FCC TCPA rule interpretations. But one of the more curious aspects of the decision is the way smartphones are discussed and the relationship to robo dialers. Basically, the decision is premised on the fact that a smartphone can be turned into an autodialer via software, and thus has the "capacity" to be one, and hence is one. And before you ask: Yes, this is the actual logic used.

Apparently, the new FCC commissioner believes a smartphone fits squarely within the definition of an autodialer such that anyone using a smartphone could potentially violate federal law when they text or call someone without the receiver's consent.

The Commission's understanding that, as long as equipment has the "capacity" to function as an autodialer-as is true of every smartphone under the agency's view-any uninvited call or message from the device is a statutory violation.

The court elaborates on how this would play out, in practical terms, when extending social gathering invitations:

Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time. If she lacks prior express consent to send the invitation, and if she obtains the acquaintance's cell phone number from a mutual friend, she ostensibly commits a violation of federal law by calling or sending a text message from her smartphone to extend the invitation. See 2015 Declaratory Ruling, 30 FCC Rcd. at 8076 (Comm'r Pai, dissenting). And if she sends a group message inviting ten people to the gathering, again without securing prior express consent from any of the recipients, she not only would have infringed the TCPA ten distinct times but would also face a minimum damages recovery against her of $5,000.

Curiously, proponents of the robodialer rule interpretation disagree that it was ever meant to, designed to, or could even be used as explained above.

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