The Federal Communications Commission (FCC) disappointed many with its July 1, 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits, amongst other things, using an automated telephone dialing system to call a cellular telephone without prior express consent. The expansive view the FCC took on the definition of automated telephone dialing system and the narrow view it took on the issue of prior express consent made the order a seemingly one sided victory for the FCC’s enforcement division (and the plaintiff’s bar).

The FCC’s order has been appealed by several interested members of the business community, and the appeals consolidated into a single action before the DC Circuit Court of Appeals.  Three petitioners to the appeal, ACA International (ACA), Professional Association for Customer Engagement (PACE), and Sirius XM Radio Inc. (Sirius) have filed their statements of issues on appeal.  Read together, their statements raises three main issues: (1) the FCC’s definition of automated telephone dialing system, (2) the FCC’s framework for prior express consent and revocation, and (3) the FCC’s definition of “called party” and one-call safe harbor.

Firstthe petitioners contend that the FCC has impermissibly redefined the term automated telephone dialing system in an arbitrary and capricious manner.  The petitioner’s uniformly point to FCC’s treatment of the term “capacity” through a “potential functionalities test” as troublesome.  ACA in particular argues that the FCC’s order “fails to provide a person of ordinary intelligence fair notice of what is prohibited” and is “so standardless that it authorizes or encourages seriously discriminatory enforcement.” Furthermore, the petitioners argue that the FCC’s order disregards the statutory definition of automated telephone dialing system by including predictive dialers that do not fall within the statutory definition, including a complete disregard of the TCPA’s language “using a random or sequential number generator.’”

Second, the petitioners argue that the FCC misinterprets the TCPA’s provisions on prior express consent. The petitioners question the source of the FCC’s authority to impose a writing requirement for the prior express consent where the statute provides none. The petitioners further question the FCC’s authority to deny businesses a similar right to require revocation be communicated in a reasonable fashion.  The petitioners raise the very real specter of unscrupulous consumers and their counsel employing means of revocation which are entirely not calculated to actually apprise the caller of revocation, thus manufacturing and multiplying the number and size of potential TCPA claims.

Finally, the petitioners argue that the FCC’s definition of a “called party” as the current user of the telephone number misreads the statute.  In the order, the FCC expressly recognizes that legitimate callers lack good means to verify when a telephone number has been reassigned to a different person. Despite this, the FCC states it will hold callers liable for violating the TCPA after a single liability-free attempt at calling the consumer.  This liability will be imposed whether or not the call was completed and regardless of whether or not it actually apprised the caller that the number had been reassigned. The petitioners argue that this one-call safe harbor and constructive knowledge framework is arbitrary and capricious and threatens to ensnare law abiding businesses.

How the DC Circuit rules in this case will certainly have a direct impact on how many businesses conduct their operations. While the TCPA was originally aimed at a specific type of abusive conduct, the FCC has certainly broadened the statute’s scope and limited the available means business could utilize to ensure compliance. As a result, more and more business are getting to know the TCPA, and the decision rendered by the DC Circuit will provide much needed clarity on the applicable framework.

The appeal is ACA International, et al. v. Federal Communications Commission, Case No. 15-1211, and it is presently pending in the United States Court of Appeals for the District of Columbia Circuit.