CBA Joins ACA’s Suit Against The FCC’s New TCPA Rules

Following ACA International’s lead, Consumer Bankers Association filed an additional challenge to the FCC’s July 10, 2015 Declaratory Ruling and Order.

On Sept. 1, 2015, Consumer Bankers Association filed a petition for review of the Federal Communications Commission’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit. 

In the petition for review, CBA challenges:

1. The FCC’s findings that the “capacity” of an automatic telephone dialing system (ATDS) is “not limited to its current configurations but also includes its potential functionalities” and the FCC’s definition of an “ATDS” as any equipment for which “there is more than a theoretical potential that the equipment could be modified to satisfy the [ATDS] definition,"

2. The FCC’s interpretation of the term “called party” as the current subscriber or customary user of the phone instead of the intended recipient of the call,

3. The FCC’s “one-call” exemption for reassigned numbers,

4. The FCC’s determination that the TCPA does not allow callers to define the manner in which “prior express consent” may be revoked, even if the established methods for revocation are reasonable, and,

5. The FCC’s treatment of text messages as phone calls for purposes of the TCPA and for assessing TCPA liability and applicability. 

ACA International was first to file suit seeking judicial review of the Ruling from the U.S. Court of Appeals for the D.C. Circuit, just hours after the FCC released it. ACA’s lawsuit against the FCC aims to 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. 

Since the FCC issued the Ruling and ACA filed its petition for review, six businesses and organizations to date have shown their support for ACA by also petitioning the court in opposition to the new TCPA rules.  All the petitions have been or will be consolidated into a single case before the D.C. Court of Appeals for determination. 

In the consolidated appeal ACA International, et al. v. Federal Communications Commission and United States of America, Case No. 15-1211, six different parties have also moved to intervene or participate as amici curiae (friends of the court) in support of ACA. 

The ACA International case will be closely watched, as the number of TCPA claims and the amounts at issue in TCPA cases have skyrocketed in recent years.  ACA will continue to follow this story as it develops to provide updates on the status of ACA’s litigation against the FCC.