The Federal Communications Commission’s (FCC) July 10, 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act (TCPA) was received by many in the business community with great concern. The Order’s seemingly one sided approach offered businesses few ways to protect themselves from inadvertent TCPA violations and opened the door for a flurry of potential lawsuits by the plaintiff’s bar. The Order was immediately appealed by ACA International, Dish Network, the Professional Association for Customer Engagement and Sirius XM Radio.
Now the consolidated appeal has grown to include heavyweights like the Chamber of Commerce of the United States, Consumer Bankers’ Association, Salesforce.com, Vibes Media and Rite Aid.
Like the original appellants, these new parties challenge the FCC’s order on (1) its interpretation of the definition of an automated telephone dialing system (ADTS) with special attention to the “capacity” test set forth in the Order, (2) its treatment of reassigned numbers as a “called party” and provision of one-call safe-harbor for calls to reassigned numbers, and (3) its standard (or rather lack thereof) for revocation of consent.
Vibes Media and the Consumer Bankers’ Association also challenged the Order for its treatment of text messages as phone calls under the TCPA.
Rite Aid also challenges the Order’s treatment of HIPPA protected health care messages. Rite Aid contends that the “FCC’s disparate treatment of residential and wireless telephone calls delivering HIPAA-protected health care messages and carve out for ‘exigent’ messages are irrational and unsupported and sure to spawn further confusion and wasteful litigation against legitimate providers . . . .”
These appeals have been consolidated in the United States Court of Appeals for the D.C. Circuit, in case No. 15-1211, ACA International v. FCC. How the D.C. Circuit rules will have a tremendous impact on the application of the TCPA going forward and should serve as an important guide for any business concerned about TCPA compliance.