D.C. Circuit Issues Landmark TCPA Decision

March 16, 2018

The D.C. Circuit Court of Appeals today issued a long-awaited decision that will have an enormous impact on Telephone Consumer Protection Act litigation across the country. In its decision in ACA International v. FCC, No. 15-1211, the D.C. Circuit gutted the Federal Communications Commission’s expansive regulatory interpretation of the TCPA as unreasonable, arbitrary, capricious, internally inconsistent, and illogical.

Specifically, the Court held that:

  • The FCC’s interpretation of the statutory term “automatic telephone dialing system” (“ATDS”) was capricious and was so overbroad that it would include consumer cell phones and thus subject almost all Americans to potential TCPA liability for run-of-the-mill calls made every day;
  • The FCC’s sweeping prior determinations that all calls made with “predictive dialing” technology qualified as calls made with an ATDS lacked the requisite “reasoned decision-making” and were nullified;
  • The FCC’s “one-call safe harbor” for calls made to reassigned phone numbers was unreasonable, illogical, and arbitrary; and
  • The FCC had concluded permissibly that a party who previously had granted prior express consent to receiving calls otherwise barred by the TCPA could revoke that consent “through any reasonable means” and that a marketer cannot impose unilaterally an exclusive means of revocation.

The Court also cast significant doubt on the currently in vogue expansive interpretation of the TCPA that imposes liability for a call placed with equipment that has ATDS capability even if that capability was not used to make the particular call at issue.

The D.C. Circuit’s ACA decision will have a seismic and (for defendants) salutary impact on litigation under the TCPA which, in the words of the current FCC Chairman, has served in recent years as the “poster child for lawsuit abuse.”


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