As Troutman Sanders LLP previously reported, earlier this month the Federal Communications Commission issued a sweeping 147-page Declaratory Ruling and Order expanding the definition of an automatic telephone dialer system (ATDS), clarifying revocation of consent, and providing limited exceptions for reassigned numbers, health care, and financial calls and text messages.  Since then, three entities have filed petitions for review in federal appellate courts, which have since been consolidated with the District of Columbia Circuit Court of Appeals.

On July 10the same day of the FCC OrderACA International, an association of credit and collection professionals, filed suit in the District of Columbia Circuit Court of Appeals, arguing that the ruling is at odds with the law’s original intent.  In its Petition for Review, ACA International argues that the FCC unnecessarily expanded the definitions of “capacity,” “automatic telephone dialing system,” and “prior express consent,” and in doing so violates due process and freedom of speech protections.  Additionally, ACA International challenges the FCC’s one-call exception for reassigned numbers, hoping to compel a “viable safe harbor” for wrong number calls and define “called party” as the intended party rather than the current subscriber.

“With its ruling, the FCC has gotten it wrong and has overstepped its bounds,” said ACA International CEO Patrick J. Morris.  “The FCC’s ruling is at odds with the plain language of the TCPA, the original intent of Congress, and common sense.  Unfortunately, ACA must now turn to the courts in order to challenge the FCC’s attempt to expand its own power and sidestep Congress.”  ACA International also expects petitions to stay enforcement of the FCC’s Order pending such review to be filed within the next few weeks.

On July 14, SiriusXM Radio, Inc. and Professional Association for Customer Engagement, Inc. (PACE), a non-profit trade organization, filed similar petitions with the District of Columbia Circuit and the Seventh Circuit Court of Appeals, respectively.  On July 24, the Judicial Panel on Multidistrict Litigation ordered the three cases consolidated, and randomly selected the District of Columbia Circuit Court of Appeals as the venue in which all three petitions will be reviewed.

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding their compliance strategy.  We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.