Legal Challenge to FCC’s TCPA Omnibus Ruling Ready for Court Decision

The FCC’s July 2015 Omnibus Ruling ("the Ruling") interpreting certain provisions of the Telephone Consumer Protection Act (TCPA) has been widely denounced by business interests for its expansive interpretation of the statute’s definition of an autodialer and edicts concerning revocation of prior express consent and reaching wrong or reassigned numbers. Specifically, the FCC ruled that the word "capacity," used in the TCPA definition of an autodialer, didn’t mean "present" capacity, but rather includes "potential ability" (for example, by connection to additional software) so as to encompass equipment that "generally" may have the capacity to store or produce, and dial, random or sequential numbers, even if not presently used or capable of being used for that purpose.

The FCC also ruled that businesses could not set standards or procedures for customers to revoke prior express consent as long as the manner in which the consumer revoked consent was "reasonable." Additionally, the FCC provided a safe harbor for only one single call or text to a wrong number reached unintentionally, and only if this resulted from reassignment of a number for which prior express consent had been received.

Shortly after the Ruling issued, ACA International (ACA), a trade association of credit and collection professionals, joined by a large contingent of industry members, including the Consumer Bankers Association (CBA), Sirius XM Radio and others ("Petitioners") filed a petition challenging it in D.C. District Court and all of the petitions were subsequently consolidated in the D.C. District Court of Appeal. Petitioners argued, inter alia, that the agency’s expansive interpretation of the TCPA’s autodialer definition is arbitrary and capricious, that the Ruling unlawfully prevents callers from reasonably relying on the prior express consent of the called party by imposing liability for innocent calls to reassigned numbers, and that it unlawfully imposes an unworkable regime for handling revocation of consent. Nine entities intervened on the side of the Petitioners, and amicus briefs were filed by the American Bankers Association, Mortgage Bankers Association, National Retail Federation, and others.

The FCC response brief has been filed, and amicus briefs in support of its position were filed by the National Consumer Law Center and National Association of Consumer Advocates, both trade associations of attorneys heavily involved in filing TCPA class actions. All briefing has been completed, leaving the decision now in the hands of the D.C. Court of Appeal.