If you are a fan of the Bachelor reality TV series, you know that the most anticipated episode of the season is the one after the bachelor has awarded his last rose to the woman of his dreams (or so he hopes).  The After the Final Rose show is intended to provide the inside scoop – the essential takeaways – from what has been a dozen episodes filled with zigs and zags as well as many unanswered questions. That’s the kind of wrap-up that’s long overdue for the industry’s challenge to the  Federal Communications Commission’s (FCC) 2015 Declaratory Ruling and Order  addressing the Telephone Consumer Protection Act (TCPA), which often seemed like a reality show in desperate need of an ending. The finale arrived in March as the DC Circuit Court of Appeals finally issued its long-awaited decision. Now that action has been taken, it’s time for a Bachelor-style breakdown. As I discussed in my last post on this topic, the FCC’s 2015 Declaratory Ruling was viewed by many as creating additional uncertainty in an area that has witnessed the chilling of the use of modern communications technology.  This has been especially apparent when it comes to non-marketing messages delivered by automated voice or text to customers’ mobile phones.  While the DC Circuit decision addressed four main issues, most commentary has focused on three areas: (1) Automatic Telephone Dialing Systems (ATDS); (2) Reassigned Numbers; and (3) Revocation of Consent. I will limit my discussion to these topics. ATDS: Reform Efforts Are Underway The Down and Dirty:  The TCPA defines ATDS as “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.” Industry wanted the Court to interpret “capacity” as present capacity and reject the 2015 Order that declared that if the equipment has the potential to be an ATDS, it is one. The DC Circuit declined to reinterpret the term “capacity”, but instead found that 2015 Order was arbitrary and capricious because it was confusing and contradictory in its explanation of the basic features of an ATDS.  Among the examples that the court highlighted was that under the 2015 Order a smart phone could be deemed an ATDS - clearly, a bridge too far. As a result, the court sent the issue back to the FCC for further review. Expected Action:  With a new President elected in 2016, the FCC has experienced a change in leadership as Chairman Ajit Pai now heads the agency under a Republican majority. Hopes for some meaningful reform is running high and industry wasted no time in filing a petition on May 3, 2018, asking the FCC for clarification around the issue of ATDS.  Specifically, 18 industry organizations are calling for the FCC to issue a declaratory ruling that would “(1) make clear that to be an ATDS, equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention, and (2) find that only calls made using actual ATDS capabilities are subject to the TCPA's restrictions.”  The petition will be subject to a comment and reply period that will likely span 45 days in total.  After that, some legal experts have indicated that the FCC could issue a declaratory ruling on this topic as soon as the beginning of 2019. Reassigned Numbers:  Relief Will Require Patience The Down and Dirty:  The TCPA prohibits a caller from making non-marketing calls (including texts) using an ATDS unless the caller has the prior express consent of the “called party”. The FCC’s 2015 Order defined the “called party” as the current subscriber to the phone number called. However, since there are about 100,000 mobile phone numbers reassigned each day, there is no foolproof method of determining whether the consent received from the original subscriber was still valid. The industry requested the term current subscriber be interpreted as the intended recipient of the call. The FCC Order acknowledged the reassigne