FCC Issues TCPA Declaratory Ruling and Order


By: Matt Foree

As reported previously, on June 18, 2015, the Federal Communications Commission (FCC) issued a press release about its new declaratory rulings.  The FCC recently published its 138-page Declaratory Ruling and Order (“Declaratory Ruling”), which was intended to address 21 pending petitions.

The Declaratory Ruling clarifies the FCC’s position on several issues, including the definition of “automatic telephone dialing system” under the Telephone Consumer Protection Act (TCPA), requirements for the prior express consent defense, the treatment of calls made to reassigned telephone numbers, and the use of call-blocking technology.  The FCC asserts that, through the Declaratory Ruling, it has strengthened the core protections of the TCPA, has empowered consumers to stop unwanted calls, and recognizes the legitimate interests of callers.  Although many hoped that the FCC would take the opportunity to apply common sense to the TCPA to curtail excessive litigation, the FCC’s ruling indicates that it may expand TCPA litigation.

Business organizations have already reacted negatively to the Declaratory Ruling.  Immediately after its filing, ACA International, the Association of Credit and Collection Professionals (ACA International), which submitted one of the petitions pending before the FCC, filed a lawsuit in the U.S. Court of Appeals for the D.C. Circuit seeking additional review of the Declaratory Ruling.  As ACA International’s CEO Patrick J. Morris stated, “The FCC’s ruling is at odds with the plain language of the TCPA, the original intent of Congress, and common sense.  Unfortunately, ACA must now turn to the courts in order to challenge the FCC’s attempt to expand its own power and sidestep Congress.”

Since the filing of ACA International’s appeal, two other entities have filed suit to challenge the FCC’s new TCPA interpretations.  The Professional Association for Customer Engagement, Inc. a nonprofit trade organization, filed a petition for review of the ruling with the Seventh Circuit Court of Appeals.  Sirius XM Radio, Inc. also filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit.

The above entities seek judicial review of the FCC’s ruling regarding the treatment of “capacity” related to the definition of an “automatic telephone dialing system” under the TCPA, the FCC’s treatment of predictive dialers, and the FCC’s treatment of prior express consent, including issues related to reassigned telephone numbers.  They also allege that the Declaratory Ruling is arbitrary, capricious, and an abuse of discretion.

It remains to be seen how the lawsuits challenging the ruling will be resolved, but if the Declaratory Ruling is upheld, businesses might be facing even more TCPA lawsuits.