THE D.C. CIRCUIT REVERSES THE FCC’S 2015 TCPA ORDER
March 19, 2018
On March 16, 2018, the D.C. Circuit Court of Appeals (“D.C. Circuit”) issued a long-awaited decision that will potentially impact Telephone Consumer Protection Act (“TCPA”) litigation across the country and will cause the Federal Communications Commission (“FCC” or “Commission”) to rewrite its rules interpreting certain key portions of the TCPA. The D.C. Circuit, in its decision in ACA International v. FCC, No. 15-1211, vacated as arbitrary and capricious portions of the Federal Communications Commission’s (“FCC” or “Commission”) 2015 Order interpreting the TCPA.
Specifically, the Court held that:
- The FCC’s interpretation of the statutory term “automatic telephone dialing system” (“ATDS”) was impermissibly overbroad in that it would potentially include consumer cell phones and thus hypothetically subject almost all Americans to potential TCPA liability for run-of-the-mill calls made every day;
- The FCC’s prior determinations that all calls made with “predictive dialing” technology qualified as calls made with an ATDS lacked the requisite “reasoned decision-making”; and
- The FCC’s “one-call safe harbor” for calls made to reassigned phone numbers was unreasonable and therefore invalid.
Notably, the Court did uphold the FCC’s approach to the revocation of consent to receive calls, stating that the Commission had permissibly concluded 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 unilaterally impose an exclusive means of revocation.
The D.C. Circuit’s ACA decision will have a significant impact on both litigation under the TCPA and telemarketing compliance programs. In addition, the Commission will be revisiting those portions of its order that were vacated in upcoming regulatory proceedings.
This Utilities and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.
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