Collector – November 2019 - 31

telephone dialing system," concluding
that predictive-dialing devices that lack
the capacity to generate numbers either
randomly or sequentially, and instead only
dial numbers from a predetermined list, do
not meet the statutory definition of an ATDS.
In doing so, the district court expressly
disagreed with the Ninth Circuit's 2018
decision in Crunch San Diego, LLC v. Marks.
In its amicus brief, ACA points out that the
overarching issue is not about telemarketing,
the pain point that precipitated action
from Congress and ultimately gave us the
TCPA. ACA makes the distinction between
the telemarketer that relies on random or
sequential phone numbers in hopes that
anyone will answer the phone with list-based
callers who are looking for a specific person
for a specific purpose.
Further, ACA points out the absurdity
of interpreting a section of the TCPA, with
potential significant liability if violated,
so broadly as to encompass everyday
Americans' smartphones. Any decision by
the Seventh Circuit paves the way to petition
the Supreme Court for writ of certiorari.
Meanwhile, Congress has its own ideas
about how to resolve the disagreement, which
are embedded in legislation. In June 2019,
the House of Representatives introduced
the Stopping Bad Robocalls Act, which
passed overwhelmingly in July 2019. The
Stopping Bad Robocalls Act requires that
phone carriers implement call authentication
technology and allows carriers to offer call
blocking services to consumers. ACA worked
closely with Congress to improve the original
version of this bill, which included ensuring
that the Stopping Bad Robocalls Act directs
the FCC to define the term "autodialer"
within six months of any final law including
this provision.
On the Senate side, it introduced the
Telephone Robocall Abuse Criminal
Enforcement and Deterrence (TRACED)

COLLECTOR 11.19

Act, which also passed overwhelmingly.
Among other things, the TRACED Act
implements a forfeiture penalty for violations
of the prohibition on certain robocalls.
It also requires voice service providers to
develop call authentication technologies.
Like the Stopping Bad Robocalls Act, the
TRACED Act directs the FCC to:
promulgate rules establishing when a
provider may block a voice call based
on information provided by the call
authentication framework, but also must
establish a process to permit a calling
party adversely affected by the framework
to verify the authenticity of their calls.
Both the TRACED Act and Stopping
Bad Robocalls Act give new enforcement
authority to the FCC, which could be abused
or problematic. ACA has been active in
improving both of these bills and securing
report language to recognize industry
concerns. At press time, ACA was actively
involved in the negotiations between the
House and Senate to reconcile the bills.
It appears to be a race among the
appellate courts, Congress and its agencies
with rulemaking authority to be the first to
finally provide clarification and certainty
to the TCPA and the definition of an
autodialer. Who will cross the finish line
first is anyone's guess.
So, what's changed since the D.C. Circuit's
decision in ACA Int'l v. FCC? Not a lot
toward certainty, unfortunately. However,
since that decision a lot of important pieces
have shifted and even though the race is
far from over, the finish line appears to be
getting closer. ACA will continue to survey
the landscape and support its members
through its advocacy efforts in Washington,
D.C., as well as providing support through
the Industry Advancement Program.
Kari Barber is ACA International's
corporate counsel.

1

The FCC has yet to act
in response to the D.C.
Circuit's decision in ACA
Int'l v. FCC.

2

ACA's Industry
Advancement Program
has provided support in
several cases that could
potentially bring about
TCPA clarity for members.

3

Appellate courts,
Congress and its
agencies with rulemaking
authority are racing to be the
first to provide clarification to
the TCPA and the definition of
an autodialer. The finish line
appears to be getting closer.
31



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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