On March 16, 2018, the D.C. Circuit issued its long-anticipated ruling in ACA International, et al. v. FCC. The decision resolved a series of challenges to the July 10 2015 Declaratory Ruling & Order of the Federal Communications Commission (FCC) implementing the Telephone Consumer Protection Act (TCPA). The Order expanded the scope of the TCPA in several important and concerning ways. Several organizations, including AFSA, were among the petitioners.
On a positive note, the court vacated the FCC’s definition of an “automatic telephone dialing system,” as well as the FCC’s treatment of reassigned wireless numbers for purposes of TCPA liability. However, the court upheld the FCC’s Order in two aspects – the approach to revocation of consent and the scope of its exemption for time-sensitive healthcare calls.
The TCPA was enacted in 1991 to curtail undesired robocalls to consumers. The statute prohibits the use of certain automated dialing equipment to make calls to cell phones without the called party’s consent. Violations of the TCPA are subject to damages up $1,500 per call. AFSA has been emphasizing the need to modernize this statute with the administration and Congress.
The court’s decision brings the issue back to the FCC. It is likely that the FCC will begin a new rulemaking with respect to TCPA, possibly this summer.
An appeal of the Court’s decision is unlikely. FCC Chairman Pai said, “I’m pleased today’s ruling does not impact the current FCC’s efforts to combat illegal robocalls and spoofing. We will continue to pursue consumer-friendly policies” and “we’ll maintain our strong approach to enforcement.”
Until a new rule is finalized, lower courts will have to fill the gap left by the D.C. Circuit's partial vacatur of the FCC’s Order. It remains to be seen how the courts will treat these issues in the absence of the FCC’s guidance.
AFSA will host a Member-only webinar next week to discuss the decision. Details are available here.
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