Written by Paul Abbott

Industry groups representing a diverse range of companies in the retail, technology, financial, and utility industries filed eight amicus briefs last week in the D.C. Circuit supporting challenges to the Federal Communications Commission’s (“FCC”) recently adopted order that expanded the agency’s rules under the Telephone Consumer Protection Act (“TCPA”).

The amicus briefs support the position of several appellants, led by ACA International (an association representing credit and collection agencies), who argue that the FCC exceeded the authority granted to it under the TCPA by adopting overly broad prohibitions on certain autodialed calls and text messages to wireless customers.

The TCPA prohibits anyone from making or sending autodialed phone calls or text messages to consumers’ wireless phones for marketing purposes without written consent.   In an order released on July 10, 2015, the FCC expanded its rules under the TCPA.  Among other things, the new rules define an autodialer to be any device capable of automatically dialing phone numbers, even if that functionality is not used at the time of the call, and exempts certain types of calls related to financial fraud or certain health care issues.

 

Several appellants, including ACA International, contend that the autodialer definition is too broad, and the exemptions for financial and health care-related autodialed calls too narrow, under the requirements of the TCPA.  The amici, including the American Bankers Association, American Gas Association, CTIA—The Wireless Association, National Association of Chain Drug Stores, and the National Retail Federation, agree with this argument.

 

The amici criticize the FCC’s TCPA rules for several reasons, including the contention that, as stated by the National Association of Chain Drug Stores, Inc., the FCC’s rule will interfere with its members ability to provide prescription and other notifications to customers.  The FCC’s rules do not adequately protect such calls, if made with an autodialer, from TCPA liability.

 

Similarly, groups representing utility companies claim the definition creates potential liability to their members if the utility companies provide customers with critical information about service interruptions and storm conditions via an autodialed call or text message to wireless phones.

 

ACA International’s challenge to the TCPA ruling is consolidated with several other challenges to the FCC’s TCPA order.  These include challenges to the FCC’s rule imposing liability on those who autodial to numbers that once belonged to a consenting customer but has since been reassigned, as well as the FCC’s determination that a customer may revoke consent to receive autodialed calls by “any reasonable means.”

 

Briefing in the consolidated appeal docket will continue through February of 2016, and we will continue to monitor and post updates on developments in the docket.