U.S. Chamber of Commerce Joins the Growing List of Petitions Against FCC for TCPA Ruling

On the heels of the Consumer Bankers Association announcement of its filing a petition for review of the Federal Communications Commission’s July 10, 2015 Declaratory Ruling and Order, the U.S. Chamber of Commerce joins the band.

The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.

“Although we support the rights of consumers as it relates to telephone communications, the FCC overstepped its authority by creating new restrictions on legitimate, good faith communications from businesses to their customers who previously gave their permission to be contacted,” said Harold Kim, executive vice president of the U.S. Chamber Institute for Legal Reform (ILR). “These arbitrary new limits will fuel abusive class action lawsuits against businesses.”

In its declaratory ruling and order the FCC, in a divided vote, vastly expanded the scope of the TCPA in several ways.

First, as explained in the Chamber’s petition for review, the FCC adopted a broad definition of the types of equipment covered by the TCPA, going so far as to suggest that even mass-market smartphones could be covered “auto-dialers.” The breadth of this ruling is highlighted by the fact that the FCC had to rely on the antiquated rotary phone as an example of equipment not covered by the law.

Second, the FCC concluded that the TCPA applies to any call made to a current subscriber or user of a reassigned wireless number, rather than the intended recipient.

Third, the FCC arbitrarily allowed just one call before imposing strict liability under the TCPA for calls that, without the caller’s knowledge, have been placed to a reassigned number–despite the fact that there is no practical way to verify the continued accuracy of numbers before a call is placed.

Fourth, the FCC significantly limited the TCPA’s consent defense, which is an essential statutory tool for warding off liability under the TCPA. Because the TCPA is increasingly the basis for meritless class actions that seek crippling damages of up to $1,500 per call against businesses, of all sizes and types, the FCC’s actions are particularly harmful for the Chamber’s members.

A copy of the U.S. Chamber’s petition for review is available here.

insideARM Perspective

This brings to six the number of petitions filed in this matter. Previously:

  1. ACA filed its petition for review with the United States Court of Appeals for the District of Columbia Circuit on July 10, and filed an amended petition on July 13, 2015.
  2. On August 7, 2015 four collection agencies – MRS BPO LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., and Mercantile Adjustment Bureau, LLC - filed a joint motion for leave to intervene in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order.
  3. PACE (the Professional Association for Customer Engagement, Inc.) also filed a petition for review with the United States Court of Appeals for the Seventh Circuit on July 14, 2015.
  4. On the same day, Sirius (Sirius XM Radio, Inc.) filed a virtually identical petition for review with the United States Court of Appeals for the District of Columbia Circuit.
  5. On September 3, 2015 the Consumer Bankers Association announced that they filed a petition for review of the Federal Communications Commission’s July 10, 2015 Declaratory Ruling and Order in the United States Court of Appeals for the District of Columbia Circuit.

insideARM will continue to monitor and report on this case and this issue that is critical to the industry. TCPA litigation continues to be an incredible cost to companies in this space. The long-term implications are significant.

By Stephanie Eidelman