Database definition

Proposed Federal TCPA Legislation Offers New, Narrow Definition of ATDS | Faegre Drinker Biddle & Reath LLP

On July 12, 2022, Reps. Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced HR 8334 in the United States House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 USC § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”

The TCPA currently defines “Automatic Telephone Dialing System” (or “ATDS”) as equipment that has the capability “to store or generate telephone numbers to be called, using a random number generator or sequential”. . . to dial such numbers. The law generally prohibits anyone from making non-consensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.

Last year, the Supreme Court narrowly interpreted the TCPA’s definition of ATDS, concluding that the definition did not include equipment that can “store” and dial telephone numbers, [where] the device does not use[] a random or sequential number generator.’” Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 1167 (2021). Judge Sotomayor, writing for the majority, explained “that the phrase ‘using a random or sequential number generator’ follows a comma placed after the phrase ‘store or produce telephone numbers to call’.” Identifier.at 1170. Therefore, this “qualifying expression separated from antecedents by a comma is proof that the qualifier is meant to apply to all antecedents”. Identifier. This interpretation has effectively become an invitation to Congress to revisit a definition unchanged since 1991.

Proponents of HR 8334 have heeded the Supreme Court’s statutory analysis by proposing a revision to the ATDS definition that would broaden its application. The bill would completely remove the phrase “use a random or sequential number generator” and insert the phrase “or sent a text message” to clarify that texts fall within the scope of the law. Although the proposed bill provides a safe harbor for those who call or text people who have given prior consent and are then given a different phone number, the sender must have queried the database from the FCC to ensure that the number is always assigned accurately. Finally, the proposed bill directs the FCC, within 18 months, to issue rules defining the terms “automatically,” “dial,” “send,” and “charged for the call.”

Although the prospects of this bill are not known, it is clear that the appellants who relied on the Duguid The ATDS interpretation cannot ignore the possibility that Congress may act to revise the statute to address the dialing technology used today. Certainly, a reboot that mirrors the content of HR 8334 would represent a significant expansion of the ATDS definition that could greatly complicate how the TCPA is applied to dialer equipment and reinvigorate the TCPA requester bar.