February 22, 2021 Articles

Senescence and Sensibility: Will the Supreme Court Mothball the TCPA?

The TCPA’s autodialing restriction has been read in a way that Congress could not have imagined, let alone intended.

By Michael P. Daly
You might expect that the definition of an automated dialer would have been settled during the statute’s first 30 years. But you would be wrong.

You might expect that the definition of an automated dialer would have been settled during the statute’s first 30 years. But you would be wrong.

Pexels/Bruno Cantuária

The Telephone Consumer Protection Act (TCPA) spawns numerous class actions every year—so many that the chairman of the Federal Communications Commission (FCC) famously fumed that professional plaintiffs were going to “ridiculous lengths” to turn the statute into “the poster child for lawsuit abuse.” In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8073 (2015) (Declaratory Ruling & Order (Comm’r Pai, dissenting)).

Many TCPA cases—probably most TCPA cases—arise from the TCPA’s restriction on using an “automatic telephone dialing system” (ATDS). You might expect, then, that the definition of that term would have been settled during the statute’s first 30 years. But you would be wrong. Indeed, few parts of the U.S. Code have received as much attention over the last decade. 

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