On January 15, 2016, the FCC filed its respondent’s brief in the case before the U.S. Court of Appeals for the D.C. Circuit challenging various aspects of the Commission’s July 2015 TCPA Omnibus Order.  The FCC brief responds to the three primary issues raised in the Petitioners’ brief, Intervenors’ brief and associated amicus briefs.  First, on the definition of ATDS, the FCC argues that the term “capacity” is ambiguous and the court should defer to the Commission’s interpretation.  It also asserts that it is permitted to “proceed incrementally” and that it will define in the future what capabilities are “too attenuated” or “theoretical” to constitute an ATDS.  In addition, the FCC argues that challenges to its conclusions about predictive dialers are barred, and in any event that its interpretation was reasonable. 

Second, on reassigned numbers, the FCC similarly asserts that the term “consent of the called party” is ambiguous in the statute and that its interpretation is reasonable.  Moreover, the FCC claims that its interpretation is consistent with the use of “called party” in other portions of the TCPA – and that the TCPA means “current recipient” and not “intended recipient” in all instances.  On the one-call safe harbor issue, the FCC contended that it could have adopted a zero-call approach for callers’ liability and that the industry has many ways to minimize the risk of liability, including the option to hire live operators or make manual calls.

Third, on revocation of consent, the FCC asserts that no one challenges the FCC’s conclusion that the statute permits consent to be revoked, asserting that the only issue is how a consumer may do so.  The Commission again argues that its approach is within its discretion and that the FCC need not address all possible means of revoking consent in the Order. Instead, it can proceed on a case-by-case basis. 

Reply briefs are due to the Court on February 16.  The Court will then set a date for oral arguments sometime this spring.