Debt Collection Agencies Enter Fray Against FCC

Four ACA International company members move to intervene in support of the association’s lawsuit seeking judicial review of the FCC’s TCPA ruling.

On Aug. 7, 2015, ACA International members MRS BPO, LLC, Cavalry Portfolio Services, LLC, Diversified Consultants Inc. and Mercantile Adjustment Bureau, LLC, filed a joint motion in the U.S. Court of Appeals for the D.C. Circuit seeking to intervene in support of ACA and two other petitioners who have already filed lawsuits against the Federal Communications Commission for unnecessarily expanding the definitions of “capacity,” “automatic telephone dialing system” and “prior express consent” under the Telephone Consumer Protection Act and, in doing so, violating due process and freedom of speech protections. 

As ACA previously reported, three petitions for review were filed in the immediate aftermath of the FCC’s TCPA Omnibus Declaratory Ruling and Order (Ruling). On July 10, 2015, within hours of the FCC’s release of the ruling, ACA filed the first lawsuit asking the D.C. Circuit Court of Appeals to review the ruling and determine whether the FCC exercised its regulatory authority appropriately or whether the agency ignored a controlling statute in order to expand the scope and reach of the TCPA in a way that Congress never intended.

Just four days later, Professional Association for Customer Engagement Inc. (PACE) and Sirius XM Radio Inc. filed separate but identical suits challenging the ruling in the U.S. Court of Appeals for the D.C. Circuit and the Fifth Circuit, respectively. Pursuant to the random selection procedure, the Judicial Panel on Multidistrict Litigation selected the D.C. Circuit as the venue to consolidate all three lawsuits under ACA’s case, Case Number 15-1211. 

In the recently filed proposal to intervene, the ACA debt collection agency members contend that the ruling “adversely impact[s]” them and exposes them “to a very substantial and concrete risk of harm.”

The four collection agencies explain that their “businesses and activities depend upon the use of equipment used to make telephone calls that is swept under the FCC’s extraordinarily expansive interpretation of the statutory term ’automatic telephone dialing system’ … and the FCC’s narrow interpretation of ’prior express consent of the called party.’” 

The motion to intervene argues that if the ruling is affirmed, the intervening collection agencies would: “(a) become subject to an ever increasing number of claims of TCPA liability for any calls made over the past four years in pending civil litigation; (b) be forced to abandon hundreds of thousands of dollars of investment in call center equipment, software and infrastructure in order to comply with the TCPA, and (c) lose employee productivity gained by the use of calling equipment and software platforms currently in operation, in order to comply with the FCC order.” 

The FCC can oppose the four collection agencies’ motion to participate as interveners.  However, if the court grants the motion to intervene, the collection agencies will have an opportunity to submit a brief on the merits. 

To date, no briefing schedule has been set for the merits stage of the case. If the court denies the motion to intervene, the collection agencies have already requested permission from the court to participate as amici curiae for purposes of filing a “friend of the court” brief in support of ACA. 

When the FCC issued the TCPA ruling, it fueled significant lingering uncertainty and fostered new uncertainty among consumers and the credit and collection industry alike. The level of uncertainty created by the ruling is sure to encourage even more TCPA class-action litigation.   And while FCC Chairman Tom Wheeler would have the industry believe that the ruling created clear and easy to follow regulations, the ruling did nothing of the sort. As such, there is likely more opposition to the FCC’s TCPA ruling to come.