The DC Circuit court will announce its decision on questions about the FCC’s 2015 TCPA Order at any moment. Their decision stems from last year’s ACA Int'l consolidated appeal challenging the validity of the Federal Communication Commission's interpretations of the Telephone Consumer Protection Act. In its July 10, 2015 Omnibus Declaratory Ruling and Order, the FCC addressed autodialers, reassigned numbers and revocation of consent.
In the recent ACA Int’l appeal that ended late last year, the joint petitioners argued that the FCC's “theoretical modification” test to determine whether a calling system is an ATDS is vague and unconstitutional.
“It has long been ACA’s assessment that the TCPA has failed to adjust to modern communications technology and evolving consumer preferences.”
-- Pat Morris, ACA International’s CEO
The DC Circuit court is expected to provide their clarification on three central TCPA issues. Below is a summary of the arguments presented to the judges during the proceedings that await their final decision.
1. The Definition of an ATDS
The primary focus of the argument was on the FCC’s expanded definition of an autodialer. The panel of judges seemed to understand the problems and focused their questions on defining what it means to store or produce numbers to be called, the application of the FCC’s ATDS test to smartphones, and the relationship between the TCPA’s general ATDS prohibition and the specific definition of an ATDS.
2. The Identity of the “Call Party” in Context of Reassigned Numbers
This issue arises frequently in TCPA litigation when deciding whether the TCPA is violated when a business attempts to place a call to one customer (who consented to receive such calls) but, because the phone number has been reassigned, the call turns out to be received by another person who does not consent to be called. The joint petitioners argued that the safe harbor is arbitrary because it reasons that a caller becomes knowledgeable of a reassigned number after only one call. It doesn’t take into account whether or not the caller gained actual knowledge of a reassignment.
3. The Means by Which Consent Can Be Revoked
In the Declaratory Ruling, the FCC determined that consumers may revoke consent “in any reasonable manner,” and barred callers from “designating an exclusive means to revoke.” The joint petitioners argued that the standards set by the FCC's 2015 TCPA Order allowing consent to be revoked at any time and by any means is arbitrary because it does not provided a standardized method of revocation for reasonably informing companies of the called party's preferences.
How this will end is anyone’s guess. It is difficult to predict how a panel of judges will rule, but the importance of resolving these issues cannot be stressed enough. We can only hope that a positive decision from the court will temper the unprecedented growth in frivolous TCPA lawsuits that are clogging the courts.
WEBINAR: How Major TCPA Ruling Impacts Your Business
Pre-register for our live webinar, featuring David Carter and Martin Cunniff with Innovista Law. They will unpack the court’s ruling and help you understand its impact on your company’s consumer engagement strategies and compliance procedures.
About the Speakers:
David Carter began his career at one of the nation’s leading telecommunications law practices before co-founding Innovista Law and the TCPA Defense Force. David leads the TCPA Defense Force’s compliance training module, assists with FCC engagement strategies, and helps clients reduce the cost and risk of litigation. He has represented both closely held and publicly traded companies facing TCPA claims with potential liability in excess of $500 million.
Martin Cunniff is a seasoned litigator with roughly 30 years’ experience, which includes a 10-year stint as Chair of Commercial Litigation for the then-largest litigation firm in the world. As a member of Innovista Law and the TCPA Defense Force, Martin focuses on TCPA litigation defense. He is a co-editor of one of the leading treatises on damages and frequently writes on TCPA-related issues. Martin has led nationally-recognized, award-winning teams in the creation of legal training and development.
Webinar includes a live Q & A to answer your questions.
Webinar Date: Next business day after the court’s opinion is released.
Time: 11:00 AM PST/2:00 PM EST
Pre-register to attend the discussion of this important court ruling which could drastically affect your future marketing activities.