On May 5, 2018, a broad range of 18 industry groups led by the U.S. Chamber of Commerce, including ACA International and members of the financial services industry, petitioned the FCC to seek clarity on the definition of an automatic telephone dialing system in light of the D.C. Circuit’s March 16, 2018 decision in ACA Int’l. v. FCC, which vacated the FCC’s prior ATDS interpretation as unreasonable, arbitrary, and capricious.
While the D.C. Circuit and the FCC have been in the limelight over the past few years for the regulation of automated calls, Capitol Hill is now abuzz with its own efforts to answer the clarion call of consumer complaints over the issue. Democrats in both the Senate and the House have decided to throw their hats in the ring by introducing legislation seeking to enhance protections for consumers besieged by the purported ongoing epidemic of “robocalls.”
As we reported last month, on the heels of the D.C. Circuit’s ruling in ACA Int’l v. FCC, the D.C. Circuit has created a tabula rasa for the FCC’s treatment of reassigned numbers under the Telephone Consumer Protection Act. The FCC now seeks to clarify the interplay between that decision and the Commission’s ongoing efforts to establish one or more reassigned number databases.
Last week, Democrat Mignon L. Clyburn announced that she will be stepping down from her position as a commissioner of the Federal Communications Commission before its next scheduled meeting on May 10. Commissioner Clyburn was first nominated to serve on the FCC by President Barack Obama in August 2009, and she completed her second term with the agency last summer. President Donald Trump and the Senate will be responsible for filling her seat with a Democratic appointee to restore the 3-2 Republican-Democratic split and thereby keep with the custom that three of the FCC’s five commissioners be affiliated with the party of the President.
In ACA Int’l v. FCC, No. 15-211, 2018 U.S. App. LEXIS 6535 (D.C. Cir. Mar. 16, 2018) the United States Court of Appeals for the District of Columbia Circuit overturned the FCC’s “expansive” interpretation of what constitutes an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. For an overview of key takeaways from the ruling, please see...
Following the D.C. Circuit’s opinion in ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 at *9 (D.C. Cir. Mar. 16, 2018), members of the Bar on all sides have found themselves potentially living in a throwback era. This is particularly true with respect to what may or may not qualify as an automatic telephone dialing system, or “ATDS,” under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.
D.C. Circuit Shuts Down Rite Aid’s Challenge to Expand Healthcare Exemptions under the TCPA and HIPAA
On March 16, 2018, the U.S. Circuit Court of Appeals for the District of Columbia issued a groundbreaking decision in ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 (D.C. Cir. Mar. 16, 2018) that raises a number of questions regarding the future of the Telephone Consumer Protection Act. The ACA Int’l decision, however, left certain healthcare communications intact while establishing the test in which a party is an “aggrieved party” for purposes of challenging orders issued by the Federal Communications Commission (“FCC”). This article provides a brief overview of the TCPA regulatory landscape and examines the implications of the ACA Int’l decision for the healthcare industry.
D.C. Circuit Holds that FCC’s Interpretation of the Term “Capacity” is Invalid Because It Makes Nearly Every American a “TCPA-Violator-in-Waiting”
The D.C. Circuit has rejected the FCC’s “impermissibly expansive” interpretation of what constitutes an Automatic Telephone Dialing System (“ATDS”) under the TCPA. ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 (D.C. Cir. Mar. 16, 2018) (“ACA Ruling”). Under Congress’s two-pronged definition of the term, an ATDS is equipment that: (1) “has the capacity”; (2) to function as an autodialer (i.e. “store or produce telephone numbers to be called, using a random or sequential number generator”). The ACA Ruling addresses the ATDS definition in two parts – first analyzing the meaning of the word “capacity” and then analyzing the functionalities required of an ATDS. This article will focus on the first of these two pieces of analysis – the meaning of the term “capacity.”
D.C. Circuit Dooms “Idiosyncratic” or “Imaginative” TCPA Revocation Efforts While Blessing Contractual Revocation Provisions in Upholding FCC’s Revocation Approach
Nearly a year-and-a-half after oral argument on the ACA International v. FCC petition for review of the Federal Communications Commission’s 2015 Omnibus Order, the D.C. Circuit Court of Appeals issued its long-anticipated opinion last Friday, March 16th, in a 51-page decision authored by Judge Srinivasan. This article focuses on the D.C. Circuit’s handling of the issue of revocation of consent and its further implications for contracting parties addressing the same.
D.C. Circuit Court of Appeals Sets Aside FCC’s Definition of “Called Party” Under the TCPA—What Comes Next?
The TCPA makes it unlawful to make autodialed calls without the prior express consent of the “called party.” The statute does not define the term “called party,” leaving parties on both sides of the aisle scratching their collective heads as to what person or persons fall within this category. The definition of “called party” is particularly important because prior express consent of the called party is a complete defense to the TCPA. Thus, identifying the “called party” is a crucial component to any TCPA compliance regime and/or lawsuit. Unsurprisingly, this was one of the principal issues addressed by the D.C. Circuit in its recent blockbuster ACA Int’l v. FCC decision, with important implications for future litigants.
It’s here! It’s here! It’s finally here! At last, I no longer need to field the question of “When, oh when, is the D.C. Circuit going to rule on the ACA Int’l appeal of the FCC’s TCPA Omnibus ruling from 2015?” Now we know the answer: right in the middle of March Madness, of course. Forced, as I am, to look up from the basketball games, I now must face the biggest TCPA questions of all: What is the current state of the law respecting predictive dialers? Can we use contractual revocation provisions to full effect? Who is the called party? Is the TCPA constitutional? This is my definitive take on these and other TCPA issues arising from the big D.C. Circuit ruling of ACA Int’l v FCC, No. 15-1211, Doc. No. 1722606 (D.C. Cir. Mar. 16, 2018).
District Court Overrules Magistrate’s Order Compelling Prior Complaint Information and Related Data in TCPA Class Action
Quicken Loans scored a victory earlier this week when Judge Steven D. Merryday sustained its objection to a magistrate judge’s order compelling production of every shred of documentation in any form about every do-not-call request that Quicken received. See Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT, 2018 U.S. Dist. LEXIS 31346 (M.D. Fla. Feb. 27, 2018).
The Ninth Circuit Court of Appeal overruled the district court’s dismissal of a TCPA case for lack of Article III standing yesterday in Elisa Romero v. Department Stores National Bank, No. 16-56265, 2018 WL 1079728 (9th Cir. Feb. 28, 2017). The district court ruling in Romero was an oft-cited and oft-criticized opinion that held, in essence, that the harm caused by phone calls must be attributable to the use of an ATDS to give rise to Article III standing. It also suggested that debt collection phone calls don’t really cause harm at all.