On August 17, 2015, the Professional Association for Customer Engagement, Inc. (“PACE”) and Sirius XM Radio Inc. (“Sirius”) (collectively, the “Petitioners”) filed identical statements of issues (read the PACE statement and the Sirius XM statement) in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The Petitioners’ statements focus on the following issues: (1) the FCC’s interpretation of the terms “capacity” and “called party” under the TCPA, (2) the FCC’s one call safe harbor provision for calls made to reassigned numbers, (3) the FCC’s treatment of revocation, and (4) the FCC’s authority to require prior express written consent for telemarketing calls.

Specifically, the Petitioners question whether the FCC’s “‘potential functionalities’ test for ‘capacity’ under the TCPA is arbitrarily vague under the Administrative Procedure Act and the Due Process Clause, violated the plain text of the TCPA, and conflicts with the First Amendment by subjecting millions of everyday devices to the TCPA’s prohibitions.” PACE Statement at 3; Sirius Statement at 3. The Petitioners contend that the FCC extended the scope of the TCPA to cover equipment that “lacks the present ability to store or produce telephone numbers to be called, using a random or sequential number generator.” Id. Next, the Petitioners raise the issue of whether the FCC’s interpretation of a “called party” as the current subscriber or customary user as opposed to the intended recipient violates the TCPA and APA. PACE Statement at 4; Sirius Statement at 4. The Petitioners state that callers rarely have actual or constructive knowledge of a reassigned number after one call and challenge the FCC’s one call (or attempted call) safe harbor provision. Id. Next, the Petitioners question whether the FCC “violated the TCPA and the APA by prohibiting callers from specifying the manner in which consent may be revoked and by forcing callers to accept revocations delivered in ways that do not reasonably inform them of the called party’s preferences.” Id. Finally, the Petitioners raise the issue of whether the FCC has the authority under the TCPA to require prior express written consent for telemarketing calls. Id.