MBA says recent litigation exposes legitimate businesses to uncertainty
The Mortgage Bankers Association (MBA) has urged the Federal Communications Commission (FCC) to adhere to the plain text of the Telephone Consumer Protection Act (TCPA) when it promulgates appropriate regulations under the law.
In a comment on the agency’s rulemaking, MBA noted that the TCPA defines an automatic telephone dialing system (ATDS) as a device that has the capacity to “store or produce telephone numbers to be called, using a random or sequential number generator’ and to dial such numbers.”
While Congress enacted the TCPA to combat an abusive form of cold-call telemarketing and fax-blast spamming, MBA said recent litigation has exposed legitimate businesses to unquantifiable uncertainty.
MBA said that a September 2018 decision by the Ninth Circuit held “that the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” MBA noted that under this definition, any device that stores numbers would be an ATDS, including many cellular devices and computers.
“The FCC should not credit the Ninth’s Circuit expansive reading of a straightforward portion of the statute. Rather, the FCC should respect Congress’s statutory design and clarify that in order to be an ATDS subject to section 227(b)’s restrictions, dialing equipment must possess the functions referred to in the statutory definition,” MBA said.
