DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 
1991, CG Docket No. 02-278, WC Docket No. 07-135
Congress passed the Telephone Consumer Protection Act (TCPA) to crack down on intrusive 
telemarketers and over-the-phone scam artists.  It prohibits telemarketing in violation of our Do-Not-Call 
rules and prohibits any person from making calls using the tools that telemarketers had at their disposal in 
1991.  And the TCPA includes a three-prong enforcement mechanism for remedying violations:  States, 
the FCC, and individual consumers can all take illegal telemarketers to court with statutory penalties 
starting at $500 per violation.1
Yet problems persist.  Last year, the FCC received 96,288 complaints for violations of federal 
Do-Not-Call rules, more than any other category of complaints.2 On June 10, the Senate Special 
Committee on Aging held a hearing on ending the epidemic of illegal telemarketing calls.3 At that 
hearing, the Attorney General of Missouri testified that the number one complaint of his constituents is 
illegal telemarketing.  His office alone received more than 52,000 telemarketing complaints in 2014.4  
And the Federal Trade Commission has reported that “increasingly, fraudsters, who often hide in other 
countries in an attempt to escape detection and punishment, make robocalls that harass and defraud 
consumers.”  The FTC noted that a single scam artist made over 8 million deceptive robocalls to 
Americans.5
The bottom line is this:  Far too many Americans are receiving far too many fraudulent 
telemarketing calls.  I know because my family and I get them on our cellphones during the day and on 
our home phones at night.  It’s a problem that’s only getting worse.
And none of this should be news to the FCC.  As I remarked in this very room back in January:  
“Unwanted telemarketing calls in violation of the National Do-Not-Call Registry are on the rise.  In fact, 
such complaints made up almost 40 percent of consumer complaints in our latest report—and the number 
of complaints jumped dramatically last year from 19,303 in the first quarter to 34,425 in the third.  Let’s 
fix this problem.”6 What has the Commission done since then to enforce the rules?  It has issued a single 
citation to a single potential violator of federal Do-Not-Call rules.7 That’s not going to solve the problem.
The courts haven’t been better.  The TCPA’s private right of action and $500 statutory penalty 
could incentivize plaintiffs to go after the illegal telemarketers, the over-the-phone scam artists, and the 
foreign fraudsters.  But trial lawyers have found legitimate, domestic businesses a much more profitable 
target.  As Adonis Hoffman, former Chief of Staff to Commissioner Clyburn, recently wrote in The Wall 
  
1 47 U.S.C. §§ 227(b)(3), 227(c)(5), 227(g), 503(b).
2 See FCC, Quarterly Reports – Consumer Inquiries and Complaints, http://go.usa.gov/3VFkB (summing complaints 
for 2014 from the “Top Complaint Subjects” tables).
3 Hearing before U.S. Senate Special Committee on Aging, “Ringing Off the Hook: Examining the Proliferation of 
Unwanted Calls” (June 10, 2015), available at http://go.usa.gov/3wVHY.
4 Overview of Statement of Attorney General Chris Koster, Special Committee on Aging Panel Discussion, at 1 
(June 10, 2015), available at http://go.usa.gov/3VFkQ.
5 Federal Trade Commission, Prepared Statement on Combatting Illegal Robocalls: Initiatives to End the Epidemic, 
United States Senate Special Committee on Aging, at 4 (June 10, 2015), available at http://go.usa.gov/3VFkw.
6 Statement of Commissioner Ajit Pai on FCC Consumer Help Center: A New Consumer Gateway (Jan. 29, 2015), 
available at http://go.usa.gov/3VF9k.
7 FreeEats.com Inc., File No. EB-TCD-13-00007717, Citation and Order, 30 FCC Rcd 2659 (Enf. Bur. 2015).
Street Journal, a trial lawyer can collect about $2.4 million per suit by targeting American companies.8  
So it’s no surprise the TCPA has become the poster child for lawsuit abuse, with the number of TCPA 
cases filed each year skyrocketing from 14 in 2008 to 1,908 in the first nine months of 2014.
Here’s one example.  The Los Angeles Lakers offered its fans a fun opportunity:  Send a text-
message to the team, and you might get to place a personalized message on the Jumbotron at the Staples 
Center.  The Lakers acknowledged receipt of each text with a reply making clear that not every message 
would appear on the Jumbotron.  The trial bar’s response?  A class-action lawsuit claiming that every 
automated text response was a violation of the TCPA.
Or here’s another.  TaxiMagic, a precursor to Uber, sent confirmatory text messages to customers 
who called for a cab.  Each message indicated the cab’s number and when the cab was dispatched to the 
customer’s location.  Did customers appreciate this service?  Surely.  But one plaintiffs’ attorney saw 
instead an opportunity to profit, and a class-action lawsuit swiftly followed.
Some lawyers go to ridiculous lengths to generate new TCPA business.  They have asked family 
members, friends, and significant others to download calling, voicemail, and texting apps in order to sue 
the companies behind each app.  Others have bought cheap, prepaid wireless phones so they can sue any 
business that calls them by accident.  One man in California even hired staff to log every wrong-number 
call he received, issue demand letters to purported violators, and negotiate settlements.  Only after he was 
the lead plaintiff in over 600 lawsuits did the courts finally agree that he was a “vexatious litigant.”
The common thread here is that in practice the TCPA has strayed far from its original purpose.  
And the FCC has the power to fix that.  We could be taking aggressive enforcement action against those 
who violate the federal Do-Not-Call rules.  We could be establishing a safe harbor so that carriers could 
block spoofed calls from overseas without fear of liability.  And we could be shutting down the abusive 
lawsuits by closing the legal loopholes that trial lawyers have exploited to target legitimate 
communications between businesses and consumers.
Instead, the Order takes the opposite tack.  Rather than focus on the illegal telemarketing calls 
that consumers really care about, the Order twists the law’s words even further to target useful 
communications between legitimate businesses and their customers.9 This Order will make abuse of the 
TCPA much, much easier.  And the primary beneficiaries will be trial lawyers, not the American public.
I respectfully dissent.
I.
The Order dramatically expands the TCPA’s reach.  The TCPA prohibits a person from making 
“any call” to a mobile phone “using any automatic telephone dialing system,”10 except in certain defined 
circumstances.  The statute defines an “automatic telephone dialing system” as “equipment which has the 
capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number 
  
8 Adonis Hoffman, “Sorry, Wrong Number, Now Pay Up,” The Wall Street Journal (June 16, 2015), available at
http://on.wsj.com/1GuwfMJ; see also John Eggerton, “FCC’s Hoffman Looks Back, Moves Forward,” Broadcasting 
& Cable (Mar. 23, 2015), available at http://bit.ly/1GEQYNR (quoting Hoffman as saying “This consumer 
protection, anti-telemarketing statute has been leveraged by aggressive plaintiffs’ lawyers to line their pockets 
lavishly with millions, while consumers usually get peanuts. . . . I think the TCPA should be known by its real 
acronym—‘Total Cash for Plaintiffs’ Attorneys.’  This is just one example where the public interest is not being 
advanced responsibly.”).
9 The Order notes that the “TCPA makes it unlawful for any business—‘legitimate’ or not—to make robocalls that 
do not comply with the provisions of the statute.”  Order at note 6.  Of course it does; rare is the statute that limits its 
scope to only illegitimate businesses.  The point is that Order redirects the TCPA’s aim away from undesirable 
practices commonly used by telemarketers (the elimination of which benefits consumers) and toward desirable 
communications between businesses and consumers (litigation against which benefits trial lawyers).  As the very 
name makes clear, the TCPA is a consumer protection statute, not a trial-lawyer protection statute.
10 47 U.S.C. § 227(b)(1)(A)(iii).
generator; and (B) to dial such numbers.”11 As three separate petitions explain, trial lawyers have sought 
to apply this prohibition to equipment that cannot store or produce telephone numbers to be called using a 
random or sequential number generator and that cannot dial such numbers.12
That position is flatly inconsistent with the TCPA.  The statute lays out two things that an 
automatic telephone dialing system must be able to do or, to use the statutory term, must have the 
“capacity” to do.13 If a piece of equipment cannot do those two things—if it cannot store or produce 
telephone numbers to be called using a random or sequential number generator and if it cannot dial such 
numbers—then how can it possibly meet the statutory definition?  It cannot.  To use an analogy, does a 
one-gallon bucket have the capacity to hold two gallons of water?  Of course not.
That’s long been the FCC’s approach.  When the Commission first interpreted the statute in 1992, 
it concluded that the prohibitions on using automatic telephone dialing systems “clearly do not apply to 
functions like ‘speed dialing,’ ‘call forwarding,’ or public telephone delayed message services[], because 
the numbers called are not generated in a random or sequential fashion.”14 Indeed, in that same order, 
the Commission made clear that calls not “dialed using a random or sequential number generator” “are 
not autodialer calls.”15
Confirming this interpretation (what some proponents call the “present capacity” or “present 
ability” approach16) is the statutory definition’s use of the present tense and indicative mood.  An 
automatic telephone dialing system is “equipment which has the capacity” to dial random or sequential 
numbers,17 meaning that system actually can dial such numbers at the time the call is made.  Had 
Congress wanted to define automatic telephone dialing system more broadly it could have done so by 
  
11 47 U.S.C. § 227(a)(1).  A random number generates numbers randomly: 555-3455, 867-5309, etc.  A sequential 
number generator generates numbers in sequence: 555-3455, 555-3456, etc.
12 TextMe, Inc. Petition for Expedited Declaratory Ruling and Clarification, CG Docket No. 02-278 (Mar. 18, 
2014); Glide Talk, Ltd. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Oct. 28, 2013); 
Professional Association for Customer Engagement Petition for Expedited Declaratory Ruling and/or Expedited 
Rulemaking, CG Docket No. 02-278 (Oct. 18, 2013).
13 See Webster’s New International Dictionary at 396 (2nd ed. 1958) (defining “capacity” in relevant part to mean 
“power of receiving, containing, or absorbing,” “extent of room or space,” “ability,” “capability,” or “maximum 
output”).
14 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, 
Report and Order, 7 FCC Rcd 8752, 8776, para. 47 (1992) (emphasis added).
15 Id. at 8773, para. 39.
16 See, e.g., Chamber Comments on PACE Petition at 5; CI Comments on Glide Petition at 3–4; Covington 
Comments on PACE Petition at 4–5; DIRECTV Comments on PACE Petition at 2–3; Fowler Comments on PACE 
Petition at 1; Glide Reply Comments on PACE Petition at 6; Global Comments on PACE Petition at 2; Internet 
Association Comments on TextMe Petition at 2–3; NCHER Reply Comments on PACE Petition at 2; Nicor 
Comments on PACE Petition at 7; Noble Systems Comments on Glide Petition at 4; Path Comments on Glide 
Petition at 22; Twilio Comments on Glide Petition at 13; YouMail Reply Comments on PACE Petition at 4; Letter 
from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at 
1–2 (June 11, 2015); Letter from Steven A. Augustino, Counsel to Five9, Inc., to Marlene H. Dortch, Secretary, 
FCC, CG Docket No. 02-278, at 1–2 (June 11, 2015); Letter from Monica S. Desai, Counsel to ACA International, 
to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at 2–6 (June 11, 2015); Letter from Stephanie L. 
Podey, Vice President and Associate General Counsel, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-
278, at 2–3 (June 10, 2015); Letter from Jennifer D. Hindin, Counsel to Sirius XM Radio, Inc., to Marlene H. 
Dortch, Secretary, FCC, CG Docket No. 02-278, at 2 (June 8, 2015).
17 47 U.S.C. § 227(a)(1).
adding tenses and moods, defining it as “equipment which has, has had, or could have the capacity.”18  
But it didn’t.  We must respect the precise contours of the statute that Congress enacted.19
The Order reaches the contrary conclusion and holds that the term “automatic telephone dialing 
system” includes equipment that cannot presently store or produce telephone numbers to be called using a 
random or sequential number generator and that cannot presently dial such numbers.  The apparent test is 
whether there is “more than a theoretical potential that the equipment could be modified to satisfy the 
‘autodialer’ definition.”20 To put it kindly, the Order’s interpretation is a bit of a mess.
For one, it dramatically departs from the ordinary use of the term “capacity.”  Although the 
Order points to dictionaries to suggest that the word “capacity” means “the potential or suitability for 
holding, storing, or accommodating,”21 those definitions in fact undermine the Order’s conclusion.  No 
one would say that a one-gallon bucket has the “potential or suitability for holding, storing, or 
accommodating” two gallons of water just because it could be modified to hold two gallons.  Nor would 
anyone argue that Lambeau Field in Green Bay, Wisconsin, which can seat 80,000 people, has the 
capacity (i.e., the “potential or suitability”) to seat all 104,000 Green Bay residents just because it could 
be modified to have that much seating.22 The question of a thing’s capacity is whether it can do 
something presently, not whether it could be modified to do something later on.
For another, the Order’s expansive reading of the term “capacity” transforms the TCPA from a 
statutory rifle-shot targeting specific companies that market their services through automated random or 
sequential dialing into an unpredictable shotgun blast covering virtually all communications devices.  
Think about it.  It’s trivial to download an app, update software, or write a few lines of code that would 
modify a phone to dial random or sequential numbers.  So under the Order’s reading of the TCPA, each 
and every smartphone, tablet, VoIP phone, calling app, texting app—pretty much any calling device or 
software-enabled feature that’s not a “rotary-dial phone”23—is an automatic telephone dialing system.24
Such a reading of the statute subjects not just businesses and telemarketers but almost all our 
citizens to liability for everyday communications.  One need not bother with the legislative history to 
realize that lawmakers did not intend to interfere with “expected or desired communications between 
businesses and their customers.”25 And one need not be versed in the canon of constitutional avoidance26
  
18 See, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in 
construing statutes.”); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987) 
(“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this 
readily available option.”).
19 See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93–94 (2002) (explaining that “like any key term in an 
important piece of legislation, the [statutory provision in question] was the result of compromise between groups 
with marked but divergent interests in the contested provision” and that “[c]ourts and agencies must respect and give 
effect to these sorts of compromises”); see also John F. Manning, Second-Generation Textualism, 98 Cal. L. Rev. 
1287, 1309–17 (2010) (arguing that respecting legislative compromise means that courts “must respect the level of 
generality at which the legislature expresses its policies”).
20 Order at para. 18.
21 See Order at para. 19.
22 The Order responds that the analogy is “inapt” because “modern dialing equipment can often be modified 
remotely without the effort and cost of adding physical space to an existing structure.”  Order at para. 16.  This 
misses the point.  If asked the seating capacity of Lambeau Field, no one would first study whether one could seat 
more than 80,000 “without the effort and cost of adding physical space” (perhaps by adding benches).  Instead, 
they’d respond with how many the stadium could seat as is, without any modification.
23 Order at para. 18.
24 Indeed, the Order both acknowledges that smartphones are swept in under its reading, Order at para. 21, and 
explicitly sweeps in all Internet-to-phone text messages via email or via a web portal, Order at para. 111.
25 Report of the Energy and Commerce Committee of the U.S. House of Representatives, H.R. Rep. 102-317, at 17 
(1991) (House Report).
to know that courts and administrative agencies normally eschew statutory interpretations that chill the 
speech of every American that owns a phone.27 Yet the Order’s interpretation does precisely that.
Let me give just one example.  Jim meets Jane at a party.  The next day, he wants to follow up on 
their conversation and ask her out for lunch.  He gets her cellphone number from a mutual friend and texts 
her from his smartphone.  Pursuant to the Order, Jim has violated the TCPA, and Jane could sue him for 
$500 in statutory damages.
In response, the Order tells smartphone owners not to worry:  “We have no evidence that friends, 
relatives, and companies with which consumers do business find those calls unwanted and take legal 
action against the calling consumer.”28 That’s little solace.  There is no evidence of smartphone class-
action suits yet because no one has thought the TCPA prohibited the ordinary use of smartphones—at 
least not before now.  Now that they do, the lawsuits are sure to follow.29
The Order then protests that interpreting the statute to mean what it says—that automatic 
telephone dialing equipment must be able to dial random or sequential numbers—“could render the 
TCPA’s protections largely meaningless by ensuring that little or no modern dialing equipment would fit 
the statutory definition of an autodialer.”30 But what the Commission deems defeat is in fact a victory for 
consumers.  Congress expressly targeted equipment that enables telemarketers to dial random or 
sequential numbers in the TCPA.  If callers have abandoned that equipment, then the TCPA has 
accomplished the precise goal Congress set out for it.  And if the FCC wishes to take action against newer 
technologies beyond the TCPA’s bailiwick, it must get express authorization from Congress—not make 
up the law as it goes along.
Next, the Order seeks refuge in Commission precedent, claiming that it has “already twice 
addressed the issue.”31 Not quite.  Those two rulings both involved “predictive dialers,” which the FCC 
described as having “the capacity to store or produce numbers and dial those numbers at random, in 
sequential order, or from a database of numbers.”32 In 2003, the FCC explained that pairing automatic 
telephone dialing equipment “with predictive dialing software and a database of numbers” (and calling 
the combination a predictive dialer) would not exclude that equipment from the statutory prohibition.33  
(...continued from previous page)   
26 See Clark v. Martinez, 543 U.S. 371, 381 (2005) (describing the canon as “a tool for choosing between competing 
plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the 
alternative which raises serious constitutional doubts”).
27 See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”).  Notably, the 
constitutional question is not whether this interpretation of the TCPA would meet the less strict standard governing 
“commercial speech,” see Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 
U.S. 557, 562–63 (1980), because the TCPA restricts the making of “any call”—not just commercial calls—using an 
automatic telephone dialing system, 47 U.S.C. § 227(b)(1)(A) (emphasis added).  Instead, the question is whether 
this interpretation is “narrowly tailored to serve the government’s legitimate, content-neutral interests.”  Ward v. 
Rock Against Racism, 491 U.S. 781, 798 (1989).  How could anyone answer that question in the affirmative given 
that the majority of Americans carry a smartphone (what the Order now labels an automatic telephone dialing 
system) in their pockets?
28 Order at para. 21.
29 This is underscored by the Order itself, which opens by emphasizing its position that the TCPA applies not “just 
[to] bad actors attempting to perpetrate frauds, but also [to] ‘legitimate businesses’ employing calling practices that 
consumers find objectionable,” and that the FCC “[has] not viewed ‘legitimate’ businesses as somehow exempt 
from the statute, nor do we do so today.”  Order at note 6.  Having opened the door wide, the agency cannot then 
stipulate restraint among those who would have a financial incentive to walk through it.
30 Order at para. 20.
31 Order at para. 15.
32 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 
Report and Order, 18 FCC Rcd 14014, 14091, para. 131 (2003) (2003 TCPA Order).
33 See id. at 14092, para. 133.
And in 2008, the FCC found that using such equipment was still prohibited even “when it dials numbers 
from customer telephone lists” and not “randomly or sequentially.”34 The key issue in each decision was 
that the equipment had the capacity to dial random or sequential numbers at the time of the call, even if 
that capacity was not in fact used.  Or, as the Commission phrased it later, it doesn’t matter “whether or 
not the numbers called actually are randomly or sequentially generated or come from a calling list”35; if 
the equipment has the requisite capacity, it’s an automatic telephone dialing system.  That’s exactly what 
the statute requires, and it’s a far cry from the issue we confront here.
In short, we should read the TCPA to mean what it says:  Equipment that cannot store, produce, 
or dial a random or sequential telephone number does not qualify as an automatic telephone dialing 
system because it does not have the capacity to store, produce, or dial a random or sequential telephone 
number.  The Order’s contrary reading is sure to spark endless litigation, to the detriment of consumers 
and the legitimate businesses that want to communicate with them.
II.
The Order opens the floodgates to more TCPA litigation against good-faith actors for another 
reason as well.  There is no TCPA liability if a caller obtains the “prior express consent of the called 
party.”36 Accordingly, many businesses only call consumers who have given their prior express consent.  
But consumers often give up their phone numbers and those numbers are then reassigned to other people.  
And when that happens, consumers don’t preemptively contact every business to which they have given 
their number to inform them of the change.  So even the most well-intentioned and well-informed 
business will sometimes call a number that’s been reassigned to a new person.  After all, over 37 million 
telephone numbers are reassigned each year.37 And no authoritative database—certainly not one 
maintained or overseen by the FCC, which has plenary authority over phone numbers—exists to “track all 
disconnected or reassigned telephone numbers” or “link[] all consumer names with their telephone 
numbers.”38 As four separate petitions explain, trial lawyers have sought to apply a strict liability 
standard on good-faith actors—so even if a company has no reason to know that it’s calling a wrong 
number, it’ll be liable.39
Imposing strict liability is not usually how the law works.  Indeed, the Commission has 
previously rejected an interpretation of the TCPA that would have imposed strict liability on callers after 
a consumer ports his number from a landline to a wireless phone.40 Instead, the FCC endorsed the view 
  
34 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA 
International for Clarification and Declaratory Ruling, CG Docket No. 02-278, Declaratory Ruling, 23 FCC Rcd 
559, 566, para. 12 (2008) (2008 TCPA Order).
35 Implementation of the Middle Class Tax Relief and Job Creation Act of 2012; Establishment of a Public Safety 
Answering Point Do-Not-Call Registry, CG Docket No. 12-129, Report and Order, 27 FCC Rcd 13615, 13629, para. 
29 (2012).
36 47 U.S.C. § 227(b)(1)(A); see also 47 U.S.C. § 227(b)(1)(B) (only prohibiting calls made “without the prior 
express consent of the called party”).
37 Alyssa Abkowitz, “Wrong Number? Blame Companies’ Recycling,” The Wall Street Journal (Dec. 1, 2011), 
available at http://on.wsj.com/1Txmowl.
38 Letter from Richard L. Fruchterman, Associate General Counsel to Neustar, to Marlene H. Dortch, Secretary, 
FCC, CG Docket No. 02-278, at 1 (Feb. 5, 2015).
39 Consumer Bankers Association Petition for Declaratory Ruling, CG Docket No. 02-278 (Sept. 19, 2013); Rubio’s 
Restaurant, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Aug. 15, 2014); Stage Stores, 
Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (June 4, 2014); United Healthcare Services, 
Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Jan. 16, 2014).
40 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 
Order, 19 FCC Rcd 19215, 19219, para. 9 (2004).
that “[i]t is a flawed and unreasonable construction of any statute to read it in a manner that demands the 
impossible.”41 That logic should apply here.
Perhaps more to the point, the statute takes into account a caller’s knowledge.  Recall that the 
statute exempts calls “made with the prior express consent of the called party.”  Interpreting the term 
“called party” to mean the expected recipient—that is, the party expected to answer the call—is by far the 
best reading of the statute.42
Start with an example of ordinary usage.  Your uncle writes down his telephone number for you 
and asks you to give him a call (what the TCPA terms “prior express consent”).  If you dial that number, 
whom would you say you are calling?  Your uncle, of course.
No one would say that the answer depends on who actually answers the phone.  If your uncle’s 
friend picks up, you’d say you were calling your uncle.  So too if the phone is picked up by the passenger 
in your uncle’s vehicle or your uncle’s houseguest.  Nor would your answer change if your uncle wrote 
down the wrong number, or he lost his phone and someone else answered it.  Who is the called party in 
each and every one of these situations?  It’s obviously the person you expected to call (your uncle), not 
the person who actually answers the phone.
And no one would say that the answer depends on who actually pays for the service.  If your 
uncle and aunt share a landline, you’d still say you were calling your uncle even if your aunt’s name was 
on the bill.  And if your uncle and aunt are on a wireless family plan, it’s still his number you’re dialing 
even if she’s picking up the tab.  In other words, it doesn’t matter who the actual subscriber is; what 
matters when placing a call is whom you expect to answer.
Given ordinary usage, it should be no surprise that the FCC has implicitly endorsed this approach 
before.  As the Commission wrote in 2008, “calls to wireless numbers provided by the called party . . . are 
made with the ‘prior express consent’ of the called party.”43 In other words, the called party is the person 
who consented to a call and the person who would ordinarily be expected to answer.
The expected-recipient approach respects Congress’s intent that the TCPA “balanc[e] the privacy 
rights of the individual and the commercial speech rights of the telemarketer.”44 On the one hand, the 
expected-recipient approach gives individuals the right to stop unwanted, wrong-number phone calls in 
the first instance.  Once an individual informs a caller that he has the wrong number, the caller can no 
  
41 McNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir. 2000).
42 Most commenters term this the “intended recipient” approach.  See, e.g., CBA Petition at 3; AFSA Comments on 
CBA Petition at 2; Nonprofits Comments on Rubio’s Petition at 4, 6; Twitter Comments on Stage Petition at 9–11; 
Letter from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-
278, at 1 (June 11, 2015); Letter from Monica S. Desai, Counsel to ACA International, to Marlene H. Dortch, 
Secretary, FCC, CG Docket No. 02-278, at 6–7 (June 11, 2015); Letter from Tracy P. Marshall, Counsel to NRECA, 
to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at 2 (June 10, 2015); Letter from Monica S. Desai, 
Counsel to Abercrombie & Fitch Co. and Hollister Co., to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-
278, at 1–4 (May 13, 2015).
43 2008 TCPA Order, 23 FCC Rcd at 564, para. 9.  The Order tries to play gotcha by claiming that the next sentence 
of that same ruling “directly supports our finding here.”  Order at note 264.  Not quite.  That sentence states that 
“the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior 
express consent by the cell phone subscriber regarding the debt.”  2008 TCPA Order, 23 FCC Rcd at 564, para. 9.  
Like the previous sentence in that order, its clear import is that a creditor may rely on a debtor’s provision of a 
number to call that number (at least so long as the creditor can reasonably expect to reach the debtor at that number).  
But the Order’s alternative reading would eviscerate that reliance since the creditor would become liable if the 
debtor wrote down the wrong number or if the debtor was not the subscriber but instead the customary user.  Such a 
result would be doubly strange since the Order itself claims that the TCPA “anticipates” a reliance interest on the 
part of callers, Order at note 313, and the Order itself rejects the notion that only the subscriber can consent to 
receiving calls, Order at para. 75.
44 House Report at 10.
longer expect to reach the party that consented and no longer claim to have to consent to continue calling.  
And so the expected-recipient approach rightfully sanctions the bad actors—often debt collectors45—that 
repeatedly call after an individual has told them they’ve got the wrong number.
On the other hand, the expected-recipient approach gives legitimate businesses a clear and 
administrable means of complying with the law and engaging in “normal, expected or desired 
communications [with] their customers.”46 A good actor can refuse to call anyone without first securing 
an individual’s consent, and a good actor can stop calling as soon as it learns that a number is wrong.  
Although taking these steps may not always be easy, they are an administrable means of complying with 
the statute and a way for any legitimate business to conduct its communications lawfully.
The expected-recipient approach also aligns the incentives of all parties to welcome legitimate 
calls and punish bad behavior.  Businesses will have every incentive to secure prior express consent 
before making a call,47 to ensure that a number is properly dialed,48 and to stop calling as soon as they 
learn that a number is wrong because those actions shield businesses from strict liability.  And the 
approach gives individuals the incentive to tell callers that they’ve got the wrong number, leading to 
fewer intrusive calls.
Confirming the expected-recipient interpretation is the canon of avoidance, which counsels that if 
one interpretation of a statute “would raise a multitude of constitutional problems, the other should 
prevail.”49 Here, the expected-recipient interpretation fosters useful and desirable communications 
between businesses and their customers—communications that consumers have expressly consented to 
receiving.  In contrast, the Order’s strict liability interpretation chills such communications by threatening 
a company with crippling liability even if it reasonably expects to reach a consenting consumer when 
making a call.  It is difficult to see how chilling desired communications in this manner is “narrowly 
tailored to serve the government’s legitimate, content-neutral interests.”50
In contrast, the Order rejects the expected-recipient approach and endorses a mishmash 
interpretation.  According to the Order, callers are subject to strict liability after a single attempted call to 
number that’s been reassigned to a new subscriber.  Its interpretation is a veritable quagmire of self-
  
45 See, e.g., Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene Dortch, Secretary, 
FCC, CG Docket No. 02-278, at 9 (June 6, 2014) (“The Consumer Financial Protection Bureau’s Annual Report for 
2013 shows that 33% of debt collection complaints involved continued attempts to collect debts not owed, which 
include complaints that the debt does not belong to the person called.”); NCLC et al. Comments on CBA Petition at 
4; NCLC et al. Reply Comments on CBA Petition at 2.
46 House Report at 17.
47 Indeed, the incentive to secure prior express consent is greater than under a strict liability approach.  Under the 
expected-recipient approach, consent is more valuable because it is a shield from liability for every call made in 
good faith.  In contrast, strict liability reduces consent’s value to one free call.  Given the substantial cost of securing 
consent, more businesses are likely to spend the resources in an expected-recipient regime than under strict liability.
48 Notably, the caller would be not be liable for calls where the consenting party wrote down a wrong number (since 
the caller would still expect to reach the consenting party by dialing the number given) but would be liable for its 
own mistakes (since the caller could not expect to reach the consenting party by dialing a number different than that 
given).
49 Clark v. Martinez, 543 U.S. 371, 380–81 (2005); see id. at 380 (“It is not at all unusual to give a statute’s 
ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the 
statute’s applications, standing alone, would not support the same limitation.  The lowest common denominator, as it 
were, must govern.”).
50 Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).  As noted earlier, the constitutional question is not 
whether this interpretation of the TCPA would meet the less strict standard governing “commercial speech,” see
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562–63 (1980), 
because the TCPA restricts the making of “any call”—not just commercial calls—using an automatic telephone 
dialing system or a prerecorded or artificial voice, 47 U.S.C. §§ 227(b)(1)(A), 227(b)(1)(B) (emphasis added).
contradiction and misplaced incentives.
For one, the Order’s chief legal theory does not hold water.  The Order insists that the “called 
party” for purposes of consent must be the subscriber because the TCPA elsewhere prohibits certain calls 
to “any service for which the called party is charged for the call” and restricts exemptions to calls “that 
are not charged to the called party.”51 But Congress did not use the phrase “called party” consistently 
throughout the TCPA.  For example, the TCPA requires the FCC to prescribe technical standards for 
“systems that are used to transmit any artificial or prerecorded voice message via telephone” and requires 
those systems to release a line “within 5 seconds of the time notification is transmitted to the system that 
the called party has hung up.”52 The Commission has never interpreted this requirement to only apply 
when the actual subscriber hangs up the phone, which would leave a rather large loophole in the TCPA’s 
enforcement regime.  And the Order does not appear to embrace this absurd theory either.  Instead, the 
law remains what it always has, that the called party for purposes of this provision is whoever picks up 
the phone.
What is more, the Order does not even subscribe to its own legal theory on the question at hand.  
Not one paragraph after positing the theory, the Order reinterprets the term “called party” to include a 
number’s customary user even if that customary user is not charged for the call because a caller “cannot 
reasonably be expected to divine that the consenting person is not the subscriber.”53 But the Order can’t 
have it both ways:  Either the legal theory is right and a customary user is not the called party, or the legal 
theory is wrong.
For another, the Order’s strict liability approach leads to perverse incentives.  Most significantly, 
it creates a trap for law-abiding companies by giving litigious individuals a reason not to inform callers 
about a wrong number.  This will certainly help trial lawyers update their business model for the digital 
age.
This isn’t mere hypothesis; it is fact.  Take the case of Rubio’s, a West Coast restaurateur.  
Rubio’s sends its quality-assurance team text messages about food safety issues, such as possible 
foodborne illnesses, to better ensure the health and safety of Rubio’s customers.  When one Rubio’s 
employee lost his phone, his wireless carrier reassigned his number to someone else.  Unaware of the 
reassignment, Rubio’s kept sending texts to what it thought was an employee’s phone number.  The new 
subscriber never asked Rubio’s to stop texting him—at least not until he sued Rubio’s in court for nearly 
half a million dollars.
The Order’s defenses are underwhelming.  The Order points out that callers have the option of 
“manually dialing”54 but forgets that dialing a number by hand still violates the TCPA if the equipment is 
an automatic telephone dialing system (which almost all equipment is under the Order).55 The Order
claims a one-call exemption for reassigned numbers would not “demand the impossible”56 but then 
  
51 See Order at para. 74; 47 U.S.C. §§ 227(b)(1)(A)(iii), 227(b)(2)(C).
52 47 U.S.C. § 227(d)(3)(B) (emphasis added).
53 Order at para. 75.
54 Order at para. 84.
55 See Order at note 70 (agreeing that any call made from an automatic telephone dialing system triggers liability, 
even if the “functionalities” making that equipment an automatic telephone dialing system are not actually used to 
make a particular call).
56 Order at note 312.  The authority the Order relies on for its one-call exemption is less than clear.  At one point, it 
says it is interpreting the phrase “prior express consent.”  Order at note 300.  Elsewhere, the Order says that the 
TCPA “anticipates” a caller’s “reliance” on prior express consent, which it then interprets to mean one call’s worth 
of reliance for reassigned numbers (and zero call’s worth of reliance for wrong numbers).  Order at note 312.  Still 
elsewhere, the Order is more forthright that it is just “balancing the caller’s interest in having an opportunity to learn 
of reassignment against the privacy interests of consumers to whom the number is reassigned,” Order at para. 85, 
which is to admit that the Order is rewriting the TCPA, not interpreting it.
imposes liability on callers even if the new subscriber does not tell them that the number has been 
reassigned.  The Order rejects a knowledge standard as “unworkable” because “once there is actual 
knowledge, callers may not honor do-not-call requests”57 but ignores the fact that good actors cannot 
implement a one-call standard while bad actors won’t honor that standard anyway.  And the Order offers 
a laundry list of ways that a caller might determine that a number has been reassigned58 but declines to 
adopt a safe harbor for good actors that carry out these practices and instead subjects them to wrong-
number litigation.
Perhaps most shocking is the Order’s claim that the answer to wrong-number calls is for 
companies to turn the liability back on their own customers.  “Nothing in the TCPA or our rules prevents 
parties from creating . . . an obligation for the person giving consent to notify the caller when the number 
has been relinquished,” the Order states before noting that “the caller may wish to seek legal remedies for 
violation of the agreement.”59 In other words, companies can sue their customers.  To be sure, this will 
create yet more work for the primary beneficiaries of the Order: attorneys.  But nothing in the TCPA or 
our rules suggests that Congress intended the TCPA as a weapon to be used against consumers that forget 
to inform a business when they switch numbers.
In short, we should not inject a strict liability standard into the TCPA.  Instead, we should 
interpret the words of the statute in the way most would and make clear that “prior express consent of the 
called party” means the prior express consent of the party the caller expects to reach.  The Order’s 
contrary reading is sure to encourage yet more litigation, to the detriment of consumers and the legitimate 
businesses that want to communicate with them.
III.
The Order will also make it harder to enforce our prohibitions on illegal telemarketing.  The 
TCPA’s chief sponsor in the Senate, Fritz Hollings, once called indiscriminate telemarketing calls “the 
scourge of modern civilization.”60 So it is unsurprising that the TCPA places additional restrictions, such 
as compliance with federal Do-Not-Call rules,61 on telemarketing calls whether they are “telephone 
solicitations” or “unsolicited advertisements.”62
The Order undermines these protections with a special carve-out for the prison payphone 
industry.  This dispensation lets that industry repeatedly make prerecorded voice calls to consumers in 
order to “set up a billing relationship” to pay for future services.63 You might have no interest in 
receiving phone calls from those behind bars, but prison payphone providers will be able to robocall you 
anyway.  This exemption opens the door to more actual robocalls—the same types of robotic calls that 
made “Rachel from Cardholder Services” infamous.
Indeed, the rationale provided by the Commission to justify this decision provides a roadmap for 
those seeking a lawful way to avoid our telemarketing rules.  That’s because we cannot exempt calls that 
“include or introduce an advertisement or constitute telemarketing.”64 So the Order must (and does) find 
that robocalling to “set up a billing relationship” is not advertising the “commercial availability . . . of . . . 
  
57 Order at para. 88.
58 Order at para. 86.
59 Order at para. 86 & note 302.
60 137 Cong. Rec. S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings).
61 See 47 U.S.C. § 227(c).
62 See 47 U.S.C. §§ 227(a)(4)–(5).
63 Order at para. 42.
64 See 47 C.F.R. § 64.1200(a)(3)(iii); see also 47 U.S.C. § 227(b)(2)(B)(ii) (prohibiting the FCC from exempting 
commercial calls that “include the transmission of any unsolicited advertisement”).
services” even though no one would agree to set up billing relationship to pay for a service that isn’t 
commercially available.65 And so the Order must (and does) find that robocalling to “set up a billing 
relationship” is not “encouraging the purchase . . . of . . . services” even though the entire point of the call 
is to get the consumer to agree to pay for services not yet performed.66 What telemarketer will continue 
to hock goods the old-fashioned way when it can escape the TCPA’s particular constraints on 
telemarketing by claiming to just set up billing relationships for services not yet performed?  In other 
words, the one type of call consumers hate most—telemarketing calls—just got easier.67
I do not support creating such a loophole.  In my view, apart from truly exigent circumstances, 
the FCC should not condone new robocalls to American consumers, period.
* * *
There is, of course, much more to the Order.  Many of the decisions just reiterate well-known, 
settled law that I support.  Yes, the TCPA applies to text messages as the Commission decided back in 
2003.68 Yes, consumers have the right to revoke prior express consent as we confirmed in 2012.69 And 
yes, a consumer may opt-in to a carrier’s call-blocking services—which has been the law of the land since 
at least 2007.70 None of these are surprising outcomes, but none advance the ball.
As for the decisions that strike new ground, a few are good law—for instance, app providers 
won’t face TCPA liability because they don’t initiate calls placed by their users.71 But most just shift the 
burden of compliance away from telemarketers and onto legitimate businesses, sometimes in absurd 
ways.
For instance, how could any retail business possibly comply with the provision that consumers 
can revoke consent orally “at an in-store bill payment location”?72 Would they have to record and review 
every single conversation between customers and employees?  Would a harried cashier at McDonald’s 
have to be trained in the nuances of customer consent for TCPA purposes?  What exactly would 
constitute revocation in such circumstances?  Could a customer simply walk up to a McDonald’s counter, 
provide his contact information and a summary “I’m not lovin’ it,” and put the onus on the company?  
The prospects make one grimace.
In all, the Order is likely to leave the American consumer, not to mention American enterprise, 
worse off.  That’s not something anyone should support.  I certainly don’t and accordingly dissent.
  
65 Order at para. 42; 47 C.F.R. § 64.1200(f)(1).
66 Order at para. 42; 47 C.F.R. § 64.1200(f)(12).
67 In responding that it has crafted a “narrow exemption” reflecting “unique factual and legal circumstances” in a 
“unique context,” Order at para. 42 & note 178, the Order misses the point.  Of course non-prison payphone 
telemarketers won’t qualify for this particular exemption.  But telemarketers can now avoid federal Do-Not-Call 
regulations because the Order narrows the definitions of telemarketing and advertising to exclude calls to “set up a 
billing relationship.”  That’s not even a loophole—that’s an invitation for more robocalls.
68 See Order at para. 107; 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165.
69 See Order at paras. 56–57; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; 
SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, Declaratory 
Ruling, 27 FCC Rcd 15391, 15397, para. 11 (2012).
70 See Order at paras. 154, 160; Just and Reasonable Rate for Local Exchange Carriers; Call Blocking by Carriers, 
WC Docket No. 07-135, Declaratory Ruling and Order, 22 FCC Rcd 11629, 11631–32, para. 6 & n.21 (Wireline 
Comp. Bur. 2007).
71 See Order at paras. 32, 36.
72 Order at para. 64.