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BREAKING – D.C. Circuit Sets Aside Key Portions of FCC Ruling in Long-Awaited TCPA Decision

Posted on: March 20th, 2018

By: Matthew N. Foree

The United States Court of Appeals for the District of Columbia Circuit has finally issued its decision in the appeal of the Federal Communication Commission’s July 2015 Declaratory Order regarding the Telephone Consumer Protection Act. The industry has been anxiously awaiting this decision for over two years. The decision provides helpful guidance to those defending TCPA claims. The highlights are set forth below.

First, the decision rejects the FCC’s guidance concerning the qualifications of an automatic telephone dialing system (ATDS). Whereas the FCC defined ATDS broadly such that it took into consideration the device’s potential ability to store or produce telephone numbers to be called and to dial such numbers in determining its “capacity” to do so, the D.C. Circuit found that this definition was impermissibly expansive.  Among other things, the D.C. Circuit found that the FCC’s decision “fails to satisfy the requirement of reasoned decisionmaking.”  Therefore, the court set aside the FCC’s treatment of the issue.

Also, the D.C. Circuit considered the FCC’s treatment of reassigned cellular telephone numbers and particularly the issue of consent provided by one user of a cell phone when that number is reassigned to another user.  The FCC determined that callers could have one free call to continue to rely on the previous subscriber’s consent.  The D.C. Circuit questioned why the consent should stop at one call and determined that the FCC did not provide a satisfactory answer to this question.  As such, the court set aside the FCC’s treatment of reassigned numbers as a whole.

Additionally, the D.C. Circuit considered the revocation of consent, an issue that has become particularly active in TCPA litigation. The D.C. Circuit did not set aside the FCC’s determination that consent could be revoked at any time by any reasonable means.

Please join Matt Foree and Jennifer Lee on Thursday, March 29, 2018 at 3:00 PM EST for a webinar entitled “Unpacking the D.C. Circuit’s Decision on the FCC’s 2015 TCPA Ruling.”  We will discuss in more detail the D.C. Circuit’s decision, including the impact of the ruling on the defense of TCPA cases moving forward.

If you have any questions or would like more information, please contact Matthew Foree at [email protected].

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