Panel Set in Crucial Appeal of TCPA Omnibus Ruling
The DC Circuit Court of Appeal has revealed the panel for the ACA, Intl. proceeding challenging the FCC’s oft-criticized 2015 TCPA Omnibus ruling. The judges assigned are Judges Srinivasan, Pillard, and Edwards.
Judge Srinivasan most recently sided with the Commission in the big Net Neutrality ruling this year. That ruling examined the FCC’s robust factual record in the Net Neutrality proceeding and approved the Commission’s findings. Although the ruling was hailed as a big win for the Commission—and demonstrated the DC Circuit’s willingness to defer to the Commission’s policy determinations—the TCPA Omnibus ruling appears to be a horse of a different color. Unlike the deeply layered factual record before it in the Net Neutrality ruling, the TCPA omnibus is extremely thin on facts supporting the Commission’s expansion of the statute.
Notably, Judges Pillard and Edwards were recently on a panel together in Amerijet Intern., Inc. v. Pistole, 753 F. 3d 1343 (D.C. Cir. 2014). There they found the TSA’s denial of a petitioners’ request for alternate screening arrangements to be ”arbitrary and capricious” concluding the agency found “no basis upon which we [can] conclude that [its denials were] the product of reasoned decisionmaking.” The ACA, Int’l petitioners are hoping for a similar finding from these same judges with respect to the FCC’s rulings.
Oral argument remains set for October 19, 2016. I’ll provide more thoughts and insight as the big day approaches. Stay tuned.