Ajit Pai celebrates after court strikes down Obama-era robocall rule

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dewayne Hendricks <dewayne () warpspeed com>
> Date: March 21, 2018 at 10:29:18 AM EDT
> To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> Subject: [Dewayne-Net] Ajit Pai celebrates after court strikes down Obama-era robocall rule
> Reply-To: dewayne-net () warpspeed com
>
> Ajit Pai celebrates after court strikes down Obama-era robocall rule
> FCC rule improperly treated everyone with a smartphone as potential robocaller.
> By JON BRODKIN
> Mar 19 2018
> <https://arstechnica.com/tech-policy/2018/03/ajit-pai-celebrates-after-court-strikes-down-obama-era-robocall-rule/>
>
> Federal judges have struck down an anti-robocall rule, saying that the Federal Communications Commission improperly 
> treated every American who owns a smartphone as a potential robocaller.
>
> The FCC won't be appealing the court decision, as Chairman Ajit Pai opposed the rule changes when they were 
> implemented by the commission's then-Democratic majority in 2015. Pai issued a statement praising the judges for the 
> decision Friday, calling the now-vacated rule "yet another example of the prior FCC’s disregard for the law and 
> regulatory overreach."
>
> The FCC's 2015 decision said that a device meets the Telephone Consumer Protection Act (TCPA) definition of an 
> "autodialer" if it can be modified to make robocalls, even if the smartphone user hasn't actually downloaded an 
> autodialing app.
>
> That interpretation treats all smartphones as autodialers because any smartphone has the capability of downloading an 
> autodialing app, judges ruled. Since any call made by an autodialer could violate anti-robocall rules, this led to a 
> troubling conclusion: judges said that an unwanted call from a smartphone could violate anti-robocall rules even if 
> the smartphone user hasn't downloaded an autodialing app.
>
> "The Commission's understanding would appear to subject ordinary calls from any conventional smartphone to the Act's 
> coverage, an unreasonably expansive interpretation of the statute," a three-judge panel of the US Court of Appeals 
> for the District of Columbia Circuit said in a unanimous ruling Friday.
>
> The ruling came in a case filed against the FCC by the Association of Credit and Collection Professionals, which says 
> it represents "third-party collection agencies, law firms, asset buying companies, creditors, and vendor affiliates."
>
> Judges also invalidated an FCC rule that helped protect consumers from robocalls to reassigned phone numbers.
>
> Normal calls could be considered robocalls
>
> The TCPA generally makes it illegal to call a cell phone using an autodialer, with some exceptions. Under the US law, 
> an autodialer is a device with the "capacity" to perform the function of "storing or producing telephone numbers 
> 'using a random or sequential number generator'" and the capacity of "dialing those numbers," the judges noted.
>
> The FCC erred by saying that a device's "capacity" to make robocalls includes "potential functionalities" that can be 
> enabled simply by downloading a smartphone app, judges wrote.
>
> "The Commission's ruling concluded that app downloads and other software additions of that variety—and the enhanced 
> functionality they bring about—are appropriately considered to be within a device's 'capacity,'" judges wrote.
>
> All smartphones, even those that don't have autodialing apps installed, thus meet the statutory definition of an 
> autodialer under the FCC approach, the ruling said. Under the commission's approach, "an uninvited call or message 
> from a smartphone violates the statute even if autodialer features were not used to make the call or send the 
> message," the judges wrote.
>
> Judges wrote that a smartphone user could be hit with $500 fines in a scenario such as this hypothetical:
>
> [snip]
>
> Dewayne-Net RSS Feed: http://dewaynenet.wordpress.com/feed/
> Twitter: https://twitter.com/wa8dzp



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