FCC interpretation of autodialer under TCPA threatening industry: MBA

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Protecting consumers from intrusive cold calls and fax-spamming is having adverse effects on the mortgage industry as the Federal Communications Commission fails to reasonably interpret language under the Telephone Consumer Protection Act, according to the Mortgage Bankers Association.

The MBA is now calling on the FCC to rationally define autodialer terms as intended by Congress when it drafted the TCPA, to avoid threatening mortgage companies conducting justifiable business practices.

"The TCPA should not expose legitimate businesses to unquantifiable uncertainty and the threat of costly liability for placing legitimate informational and other non-telemarketing calls to their customers," Pete Mills, the MBA's senior vice president of residential policy and member engagement, wrote in a letter to the organization.

"Unfortunately, the recent wave of litigation had led to this very situation," he continued.

An automatic telephone dialing system is defined under the TCPA as equipment with the capacity to "store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers."

This language suggests a device must be able to generate numbers in random or sequential order, must be able to store or produce those numbers called using that number generator, and must be able to dial those numbers, according to the MBA, which asked the commission not to stray from this "straightforward language."

"Devices that cannot perform all three of these functions cannot meet the statutory definition of an ATDS," wrote Mills. "MBA urges the Commission to adhere to the statutory text of the TCPA and propose rules that retain consumer protections while creating clear paths to compliance for businesses."

A D.C. Circuit Court case previously highlighted errors in the FCC's Declaratory Ruling on the TCPA, prompting district courts to more appropriately express TCPA interpretations. The commission also faced heat on autodialers back in May, when a financial industry petition called on the organization to make consumer robocall lawsuits more difficult to win.

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