On January 15, the Federal Communications Commission defended its controversial July 10, 2015 Order (the “Order”) expansively interpreting the Telephone Consumer Protection Act (“TCPA”) in a 110-page brief filed in ACA International et al. v. FCC et al., where several consolidated challenges to the Order by businesses and trade groups are being heard in the District of Columbia Circuit.  In its brief, the FCC asked the U.S. Court of Appeals to defer to its broad Order, which it defended as the “reasonable exercise of its delegated authority to interpret and administer the TCPA.”

As we have previously outlined, the petitioners, as well as a number of amici representing a coalition of trade groups, have submitted their own briefs opposing the Order.  In its responsive filing, the FCC provided a detailed legal analysis of the statutory text as well as regulatory and legal history of the TCPA in its effort to demonstrate that its interpretations are “reasonable.”  The brief focuses on two themes: deference to administrative judgment and interpretation, and key details yet to be decided regarding the Order’s application.

On one of the most important issues, the definition of what qualifies as an automatic telephone dialing system (“ATDS”), the FCC acknowledged that its definition only provides a “rough” guideline to be fleshed out in the future on a case-by-case basis.  As for the definition of “prior express consent,” the FCC stated that it can be obtained not only via oral or written affirmation, but also “demonstrated by a consumer’s actions in particular circumstances.”

The FCC’s brief also contained a discussion about healthcare calls, noting that such calls already have considerable protection due to the residential call exemption and the free-to-the-end-user exemption.  Such protections, however, only apply to calls regarding the provision of healthcare, not to all calls (e.g., billing) made by a healthcare-related entity.

Notably, the FCC made several affirmative statements about issues that the Order did not resolve:

  • To what extent “human intervention” is required for a call to not be considered made by an ATDS;
  • Whether a smartphone can be an ATDS; and
  • Whether parties can select a particular revocation procedure by mutual agreement.

The FCC also defended the TCPA’s constitutionality, echoing its stance taken in support of the law in a putative consumer class action against Facebook.  However, its brief here assumes the TCPA is content neutral; the Facebook challenge argues to the contrary because of the law’s separate treatment of emergency and non-emergency messages.  In a recent and related appellate case, the Fourth Circuit struck down South Carolina’s automated call statute on similar grounds, finding that restrictions on calls “made for consumer, political, or other purposes” did not survive strict scrutiny.

The petitioners’ reply brief is due by February 16.  With several substantial unresolved questions lingering, the TCPA’s application and perhaps ultimate fate will likely require the United States Supreme Court to weigh in regarding the law’s constitutionality, proper interpretation, and/or the FCC’s authority.  The Supreme Court is also currently weighing a separate challenge regarding requisite damages that could affect a sizable portion of TCPA litigation.

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.