On May 16, Commissioner Michael O’Rielly of the Federal Communications Commission issued incendiary remarks aimed at mobilizing all industries impacted by the “perpetual legal limbo” that is the current state of Telephone Consumer Protection Act interpretation and litigation. 

Speaking at the ACA International Conference, O’Rielly called for businesses to increase pressure on the agency to act in response to the litigation “mess” that has been caused by widespread uncertainty over how to interpret the TCPA. O’Rielly cautioned that “[f]ailure to address TCPA is not a failure of leadership, nor can the blame be placed on Chairman Pai.” O’Rielly instead urged “extensive cooperation and collaboration with everyone else caught in the TCPA spider web, screaming the same message at the same fever pitch.”

O’Rielly said that “[i]t remains up to this FCC to respond to that court’s set-asides, re-define [automatic telephone dialing system] in a clear and rational manner and complete the adoption of a non-arbitrary reassigned numbers database with a sufficiently workable safe harbor.” 

The remarks from O’Rielly highlighted how the TCPA legal landscape has devolved following the decision in ACA International v. FCC, noting that the resulting decisions have been riddled with inconsistent holdings on key terms such as “autodialer” and the potential for uncapped statutory damages. O’Rielly warned that the “unclear and expansive” TCPA rules that have been issued by the FCC in recent years have only served to create “a crippling litigation threat for businesses in virtually all industries.” 

O’Rielly urged the FCC to avoid embracing an overly expansive definition of ATDS. He argued that it would do “absolutely nothing to deter or prevent” spoofed and other unlawful robocalls that have been the focus of the agency in recent months. “While eliminating illegal robocalls is a critical priority, we must remain mindful not to catch legitimate organizations, like yours, in the crosshairs. The stakes are too great for businesses, consumers, and the rule of law.” 

These candid and provocative remarks from a sitting FCC commissioner are both a call to action and a beacon of hope for businesses and industries impacted by the exponential rise in TCPA litigation. However, O’Rielly’s speech is not all roses and rainbows: to those who have long awaited FCC guidance following the decision in ACA International v. FCC, O’Rielly’s call to action also means there will likely be no action on the TCPA from the FCC anytime soon.