Battle Against the FCC’s TCPA Declaratory Ruling and Order Has Just Begun

Following ACA’s lead, two more organizations sue over the FCC’s TCPA ruling.

As ACA International previously reported, late last week the Federal Communications Commission approved a Declaratory Ruling and Order (Ruling) that purports to clarify – but greatly expands the reach of – the Telephone Consumer Protection Act. The FCC issued the Ruling intending to address nearly two dozen outstanding petitions, including ACA’s January 2014 petition that asked the FCC to clarify the long-standing uncertainty about the law’s application and enforcement – which has caused legitimate businesses attempting to follow the law to be vulnerable to predatory lawsuits. 

On the same day the FCC released the Ruling, ACA immediately filed the first lawsuit seeking judicial review of the Ruling from the U.S. Court of Appeals for the D.C. Circuit. 

Two other organizations have already followed ACA’s lead by filing suit to challenge the FCC’s new TCPA interpretations. Yesterday, Professional Association for Customer Engagement, Inc. (PACE), a non-profit trade organization dedicated to the advancement of companies that use a multi-channel approach to engaging customers, filed a Petition for Review of the FCC’s Ruling with the Seventh Circuit Court of Appeals. Sirius XM Radio, Inc. also filed an identical Petition for Review yesterday in the D.C. Court of Appeals. The current petitioners in these TCPA appellate review cases have challenged the FCC’s Ruling with respect to:

1. The FCC’s treatment of “capacity” within the definition of an “automatic telephone dialing system” under the TCPA;

2. The FCC’s treatment of predictive dialers; and

3. The FCC’s treatment of prior express consent, including the FCC’s treatment of reassigned numbers.

Additional similar lawsuits against the FCC seeking judicial review of the Ruling, along with petitions to stay the enforcement of the Ruling pending such review, are likely to be filed within the next few weeks. Given the significant impact of the Ruling – which has created tremendous new TCPA risks for businesses that contact consumers by telephone – and considering the number of petitioners who sought relief from the FCC with respect to the onslaught of TCPA cases targeting legitimate business practices where good-faith attempts at compliance were made, the battle against the FCC’s interpretation of the TCPA is far from over. 

The Ruling does provide some clarity as to the FCC’s interpretation of the TCPA. However, it also makes clear that the FCC intends to interpret the provisions of the TCPA very broadly in an effort to afford the greatest protections to consumers. Unfortunately, this may often come at the expense of companies who are trying, in good faith, to reach their existing customers and clients, or other interested parties, to provide, in most instances, direct or immediate assistance to the called party. 

These appeals present an important question about whether the FCC exercised its regulatory authority appropriately or if the agency has ignored controlling statute in order to expand the scope and reach of the TCPA in a way that Congress never intended. Should an appellate court strike down the Ruling, it could significantly narrow the FCC’s ability to regulate under the TCPA. But if an appellate court upholds the Ruling, large and small businesses in the credit and collection industry and beyond could have to deal with even more TCPA lawsuits claiming violations of rule that’s impossible to follow.