Collector – November 2019 - 28

The 2015 Omnibus Ruling was the
FCC's attempt to clarify various aspects
of the TCPA's general bar against using
automated dialing devices to make
uninvited calls; but in reality, it fell well
short of its proposed goal line to curtail
frivolous lawsuits.
However, in March 2018, as ACA's
members likely recall quite vividly, the D.C.
Circuit rejected the FCC's interpretation
of an autodialer as overly broad, arbitrarily
vague and "utterly unreasonable." The court
also struck down the entirety of the FCC
decision as it related to reassigned wireless
numbers. Our industry momentum at that
time was surging.
That momentum has been somewhat
thwarted by the FCC's lack of action in

WINS

response to the D.C. Circuit's decision.
And since that decision, courts continue to
grapple with the age-old argument of what
constitutes an ATDS pursuant to the TCPA.
Meanwhile, the FCC appears to be content
with this unsettled landscape and has instead
turned its attention to other matters, such as
illegal robocalls. Unwittingly caught up in
this indecisive spectacle are ACA's members,
who are simply trying to compliantly run
their businesses.
But we are not giving up. ACA's Industry
Advancement Program has kept ACA
and its members at the forefront of this
longtime effort to clarify application
and enforcement of the TCPA so that
businesses can successfully comply. Since
the D.C. Circuit's decision, ACA has had

PENDING

UNFAVORABLE

INDUSTRY ADVANCEMENT PROGRAM

ACA's Industry Advancement Program:
Fighting for Members in the Courts &
Lobbying in D.C.
ACA International's efforts to proactively support the accounts
receivable management industry are part of the association's Industry
Advancement Program and are made possible by funding through ACA's
Industry Advancement Fund. If you want to read more about the most
recent significant judicial decisions involving the accounts receivable
management industry, ACA members can always find concise case
summaries at acainternational.org/industry-advancement-program.

28

many opportunities to provide support-
financially and as a "friend of the court"-
in matters that could potentially bring
clarification to ACA's members and have
significant industrywide impact.
As part of ACA's long-term initiative to
reform the TCPA, in 2018 ACA submitted an
amicus curiae ("friend of the court") brief in
the Crunch San Diego, LLC v. Marks case to
provide assistance and insight to the Ninth
Circuit with respect to the public policy and
due process implications of how the TCPA
is interpreted and applied by the accounts
receivable management industry. 
Nevertheless, the Ninth Circuit adopted
an overly broad interpretation of an
ATDS, ruling that the TCPA includes all
equipment that "engages in automatic
dialing," not just "equipment that
operate[s] without any human oversight or
control." The Ninth Circuit reasoned that
"[c]ommon sense indicates that human
intervention of some sort is required
before an autodialer can begin making
calls, whether turning on the machine
or initiating its functions." Therefore,
the appellate court held that Crunch San
Diego's equipment, which dials numbers
automatically, "qualifies as an ATDS, even
though humans, rather than machines, are
needed to add phone numbers."     
The Ninth Circuit's decision in Marks
created a circuit split with decisions by two
other sister circuit courts of appeals-the
Second and Third Circuits-which also
considered the issue of interpreting the
legal definition of an autodialer and reached
the opposite conclusion. Both the Second
Circuit in King v. Time Warner Cable,
Inc. and the Third Circuit in Dominguez
v. Yahoo, Inc. (a case in which ACA also
provided amicus support) have held that a
device is not considered an ATDS under the
TCPA unless it currently has the capability
to dial randomly generated or sequential
phone numbers. The Marks case settled
before any intervention by the U.S. Supreme
Court.
Still, other cases are ripe for Supreme
Court review. In Duguid v. Facebook, Inc.,
the Ninth Circuit reaffirmed its broad

ACAINTERNATIONAL.ORG


http://www.acainternational.org/industry-advancement-program http://www.ACAINTERNATIONAL.ORG

Collector – November 2019

Table of Contents for the Digital Edition of Collector – November 2019

Upfront
Industry News
Best Practices
FYI
Collection Tips
Do Your Policies Measure Up?
The Life-Changing Magic of Tidying Up Your Call Evaluations
The (Slow) Race to Clarify the TCPA
Honor Roll
Calendar
Education Spotlight
ACA’s LevelUp Leadership Experience
Lead the Next Generation Through Mentorship
Texas Tackles the TCPA
Never Give Up
A Resource Every Member Needs
Rising to the Top
ACA SearchPoint
Ad Index
Membership
Last Word
Collector – November 2019 - Cover1
Collector – November 2019 - Cover2
Collector – November 2019 - 1
Collector – November 2019 - 2
Collector – November 2019 - 3
Collector – November 2019 - Upfront
Collector – November 2019 - 5
Collector – November 2019 - Industry News
Collector – November 2019 - 7
Collector – November 2019 - 8
Collector – November 2019 - 9
Collector – November 2019 - Best Practices
Collector – November 2019 - 11
Collector – November 2019 - FYI
Collector – November 2019 - 13
Collector – November 2019 - Collection Tips
Collector – November 2019 - 15
Collector – November 2019 - Do Your Policies Measure Up?
Collector – November 2019 - 17
Collector – November 2019 - 18
Collector – November 2019 - 19
Collector – November 2019 - The Life-Changing Magic of Tidying Up Your Call Evaluations
Collector – November 2019 - 21
Collector – November 2019 - 22
Collector – November 2019 - 23
Collector – November 2019 - The (Slow) Race to Clarify the TCPA
Collector – November 2019 - 25
Collector – November 2019 - 26
Collector – November 2019 - 27
Collector – November 2019 - 28
Collector – November 2019 - 29
Collector – November 2019 - 30
Collector – November 2019 - Honor Roll
Collector – November 2019 - Calendar
Collector – November 2019 - 33
Collector – November 2019 - Education Spotlight
Collector – November 2019 - 35
Collector – November 2019 - ACA’s LevelUp Leadership Experience
Collector – November 2019 - 37
Collector – November 2019 - Lead the Next Generation Through Mentorship
Collector – November 2019 - 39
Collector – November 2019 - Texas Tackles the TCPA
Collector – November 2019 - 41
Collector – November 2019 - Never Give Up
Collector – November 2019 - 43
Collector – November 2019 - A Resource Every Member Needs
Collector – November 2019 - 45
Collector – November 2019 - Rising to the Top
Collector – November 2019 - 47
Collector – November 2019 - ACA SearchPoint
Collector – November 2019 - Ad Index
Collector – November 2019 - Membership
Collector – November 2019 - 51
Collector – November 2019 - Last Word
Collector – November 2019 - Cover3
Collector – November 2019 - Cover4
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