As we previously reported, several legal challenges to the Federal Communications Commission’s July 10, 2015 order (the “FCC Order”) interpreting the Telephone Consumer Protection Act of 1991 (“TCPA”) were consolidated with the District of Columbia Circuit Court of Appeals as ACA International, et al. v. Federal Communications Commission et al.  The challengers believe the FCC Order expanded the TCPA far beyond its intended meaning, including expansive definitions of “capacity,” “automatic telephone dialing system,” and “prior express consent.”

On November 25, the petitioners filed a joint brief to present their case that the FCC Order expanded the TCPA in a way that Congress never intended.  The joint brief addresses three key aspects of the FCC Order: its interpretation of what constitutes an automated telephone dialing system (“ATDS”); its definition of prior express consent, including its definition of reassigned numbers; and its treatment of revocation of consent.

The brief argues a number of key points regarding the FCC order, including that:

  • It misinterprets “capacity” in defining ATDS to consider potential rather than present ability;
  • It ignores the random-or-sequential-number-generation requirement from the statute;
  • It weakens legitimate consent defenses by holding callers strictly liable for calls to reassigned numbers, even if made in good faith; and
  • It creates an unworkable system for processing revocations of consent, and prevents callers and consumers from overcoming this problem by private agreement.

The petitioners summed up their argument as such: “In short, the Commission’s interpretation of the TCPA leads to a $500 price tag on almost every routine call or text, transforming the statute’s focused ban on random or sequential calling into an expansive source of crippling class-action liability.”  The FCC’s responsive brief is due by January 15, 2016; the petitioners will have an opportunity to reply by February 16, 2016.

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 strategies.  We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.