There’s a storm brewing, and it centers on a federal district court’s ability to question the validity of the FCC’s rules implementing the Telephone Consumer Protection Act (TCPA) in the context of class actions. 

Late last week, a panel of judges in the Eleventh Circuit heard oral arguments in the interlocutory appeal of a decision of the trial court in Mais. v. Gulf Coast Collections Bureau.  The Mais case implicates a 2008 Declaratory Ruling in which the FCC determined that a consumer’s decision to provide a company with his or her mobile telephone number can be treated as “express consent” under the TCPA for the purpose of later autodialed or pre-recorded debt collection calls.  While most courts defer to the FCC’s interpretation of the TCPA in this context, the Mais court refused to do so on the basis that the “FCC’s construction was inconsistent with the statute's plain language because it impermissibly amends the TCPA to provide an exception for ‘prior express or implied consent’” (emphasis in original). The FCC has filed an amicus brief in which it vigorously opposes the district court’s authority to question the 2008 Declaratory Ruling. 

Coincidentally, a few days prior to the oral arguments in Mais, a judge in the Southern District of New York granted class certification in Zyburo v. NCSPlus, a case that also involves automated debt collection calls to wireless numbers.  While class certification in TCPA litigation is not itself remarkable, the Zyburodecision stands out because the court adopted – practically in whole cloth – the Mais court’s rationale for denying deference to the 2008 Declaratory Ruling.

But the issue is not quite so simple as two courts staking out a minority position on a discrete issue in debt collection cases.  Next week, the Supreme Court is scheduled to consider whether to take up an appeal of a Sixth Circuit decision addressing the general question of a federal district court’s to consider the validity of the FCC’s TCPA regulations.  As in Mais, the FCC has filed a forceful brief asserting that the circuit courts of appeal – not the district courts – have exclusive jurisdiction to review FCC orders.

These cases are potentially significant for TCPA litigants.  If the appellate winds favor the district courts’ authority, future trial courts’ TCPA decisions could become untethered from the FCC’s expert analysis, thereby leading to a fractured application of the law in certain contexts.