Two Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order

As anticipated, additional parties continue to join the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. On August 26, 2015, inc. and its wholly-owned subsidiary ExactTarget, Inc. (collectively “Salesforce”) filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit. See Inc., et al. v. FCC, No. 15-1290 (D.C. Cir. filed Aug. 26, 2015). On September 1, 2015, the Consumer Bankers Association (“CBA”) filed its own petition for review. See Consumer Bankers Assoc. v. FCC, No. 15-1304 (D.C. Cir. filed Sept. 1, 2015).

Salesforce challenges the FCC’s inconsistent treatment of the term ATDS throughout the Order, stating that the Order unlawfully exceeds the FCC’s authority in one section, reaffirms Congress’s statutory definition in another section, and endorses an entirely different view unsupported by the TCPA in another section. See Salesforce Pet. at 2. Salesforce also challenges the Order’s definition of “called party,” asserting that it “makes it impossible for callers to ensure that at the time of any call or text, the prior express consent they obtained for that number remains valid.” Id. Finally, Salesforce contends that the Order “treats ‘prior express written consent’ and revocation of consent in a way that is inconsistent with prior FCC statements, exceeds the FCC’s authority, and puts an undue and excessive burden on callers, and particularly those communicating by text message.” Id. The petitioners ask the DC Circuit to either find the Order unlawful and set aside the unlawful portions, including but not limited to the portion addressed above, or declare the TCPA unconstitutional. Id. at 3.

CBA asserts that the FCC abused its discretion and acted arbitrarily and capriciously by: (1) finding that the “capacity” of an ATDS includes its “potential functionalities” and any equipment that has “more than a theoretical potential” of being modified to satisfy the ATDS definition qualifies as an ATDS, (2) defining the term “called party” as the subscriber or customary user of the telephone number rather than the intended or expected recipient of the call, (3) establishing a “one-call” exemption for reassigned calls regardless of whether the caller had knowledge of the reassignment or the call was answered, (4) prohibiting callers from establishing reasonable means by which “prior express consent” may be withdrawn, and (5) finding that text messages are calls for purposes of the TCPA and there is no distinction between text messages and telephone calls for purposes of the TCPA. See CBA Pet. at 3-5. CBA asks the DC Circuit to find the above portions of the Order arbitrary, capricious or otherwise unlawful and then vacate and remand to the FCC for proceedings consistent with the Court’s findings. See Id. at 5-6.

As it stands now, the consolidated appeal of the FCC’s Order consists of petitioners ACA International, PACE, SiriusXM, CodeBroker LLC, inc. and ExactTarget, Inc.  We expect that the Consumer Bankers Association’s petition for review will be consolidated shortly.  The consolidated appeal also consists of intervenors MRS BPO, LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., Mercantile Adjustment Bureau, Council of Americans Survey Research Organizations and Marketing Research Association.  Stay tuned as we continue to provide updates on developments in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order.

Common Sense Rulings on the Meaning of “Prior Express Consent”

On August 20, 2015, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), affirming an order granting the defendants’ motion to dismiss, and on August 21, 2015, the United States Court of Appeals for the Sixth Circuit rejected a challenge to a jury verdict in favor of the defendant, Hill v. Homeward Residential, Inc., No. 14-4168, 2015 U.S. App. LEXIS 14703 (6th Cir. Aug. 21, 2015). In both cases the definition of “prior express consent” was at issue, and in both cases the plaintiff’s attempt to shrink the definition was rejected.

In Murphy, the plaintiff (“Murphy”) attempted to bring a putative class action against three defendants: DCI Biologicals Orlando, LLC, DCI Biologicals, Inc., and Medserv Biologicals, LLC (“DCI”). Murphy, 2015 U.S. “App. LEXIS 14632, at *2-3. DCI, a buyer and reseller of blood products throughout the country, obtained Murphy’s cellular telephone number after he filled out a medical release that asked for his contact information, including his cellular telephone number when making donations in 2010. Id. Two years later Murphy received two text messages from DCI asking him to donate, and Murphy responded by filing a suit alleging that he had not provided prior express consent to receive autodialed calls. Id. at *3.

DCI moved to dismiss the case and argued that the Murphy gave prior express consent by providing his contact information. Id. at *4-5. The district court agreed with DCI and found that Murphy had provided prior express consent as defined by the FCC, and that it did not have jurisdiction under the Hobbs Act to contradict the FCC’s interpretation of prior express consent. Id. The Eleventh Circuit agreed that the district court lacked jurisdiction to contract the FCC’s interpretation, id. at *9-10, and then held that Murphy had provided prior express consent by providing his cellular telephone number, affirming the district court, id. at *11-12.

In Hill the plaintiff (“Hill”) claimed that he received over a hundred calls in violation of the TCPA from his creditor, Homeward Residential, Inc. (“Homeward”). See Hill 2015 U.S. App. LEXIS 14703, at *2. Hill incurred the debt in 2003 from another company. Id. At that time he provided that company with his home phone number and his work phone number. Id. Hill cancelled his home phone number three years later and obtained a cellar telephone number, which he provided to Homeward when the loan was transferred. Id. at *2-3. Eventually Hill fell behind on his mortgage and listed his cellular phone number on the modification document; he then asked Homeward not to call him at work, asking them to call his cellular telephone number instead. Id. When Hill defaulted on his mortgage, helisted his cellular telephone number on numerous documents. Id. He eventually filed suit under the TCPA. Id. After discovery, both parties moved for summary judgment which the district court denied because two questions of fact remained: (1) whether Homeward used an automatic telephone dialing system; and (2) whether the Hill had offered his cellular telephone number to Homeward. Id. at *3-4. The case proceeded to a jury, which returned a verdict in favor of Homeward.

Hill raised three issues in his appeal; however, the only substantive issue was whether the district court had given a proper jury instruction on “prior express consent.” Id. at *4. The Sixth Circuit held that the district court had properly instructed the jury on the meaning or prior express consent by using language from FCC Orders. Id. at *6. On appeal, Hill argued that the instructions were wrong because the district court should have instructed the jury that his cellular telephone number had to be provided during the initial transaction creating the debit. Id. at *6-7. However, the Sixth Circuit noted that “[u]nlike Hill, the FCC never uses the words initial or original before ‘transaction.’ It instead stays that the debtor has given his consent when he gives his number ‘during the transaction’ that involves the debt.” (quoting 23 F.C.C. Rcd. at 564-65, 567 (emphasis added). Id. at *7. The Sixth Circuit then noted that this rule allows creditors to call about debt, but prohibits them from calling about other topics. Judge Clay in a concurring opinion then questioned the FCC’s definition of “prior express consent;” however, he noted that this was not before the court.

Together these opinions show that courts are unwilling to narrow the definition of “prior express consent.”  Contrary holdings would have resulted in absurd results – such as Hill being able to sue his creditor for calling him on the number that he asked them to.  While these decisions do not change the definition of “prior express consent,” the Sixth and Eleventh Circuits have reaffirmed that companies can call individuals who provide their cellular telephone numbers as a point of contact and consent to receive the calls.

A Busy Summer at the FCC: The Commission Releases Its Fax Waiver Order

On August 28, 2015, the Consumer and Governmental Affairs Bureau (“Bureau”), on authority delegated from the Federal Communications Commission, released an Order (“August 28 Order”) granting 117 petitions seeking a retroactive waiver of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)).  The August 28 Order was the first time since the October 30, 2014 Fax Order (reported on here, wherein the FCC retroactively waived the applicability of Section 64.1200(a)(4)(iv) as to 24 petitioners, and invited similarly-situated parties to file petitions of their own requesting the same relief) that the Bureau addressed the applicability of Section 64.1200(a)(4)(iv).  The petitions granted on August 28 were filed between September 30, 2014, and June 16, 2015.

In the August 28 Order, the Bureau opened by summarizing the history of fax regulations under the TCPA and recounting the lead-up to the October 30, 2014 Fax Order, namely, “that a footnote contained in the Junk Fax Order caused confusion regarding the applicability of the opt-out notice requirement to faxes sent to recipients who provided prior express permission.”  August 28 Order ¶ 7.  In the October 30, 2014 Fax Order, the Commission had explained that “[t]he use of the word ‘unsolicited’ in this one instance may have caused some parties to misconstrue the Commission’s intent to apply the opt-out notice to fax ads sent with the prior express permission of the recipient.” October 30, 2014 Order ¶ 24. The FCC had also acknowledged a second source of confusion in terms of a “lack of explicit notice” of the FCC’s intent to impose an opt-out requirement on solicited fax advertisements. Id. ¶ 25.  “As a result, the Commission found that good cause existed to grant limited retroactive waivers to those petitioners who sent fax ads to recipients who had provided prior express consent to receive them.”  August 28 Order ¶ 7.

In granting this meaningful relief to 117 “similarly-situated” parties, the Bureau noted that “good cause exists to grant individual retroactive waivers of section 64.1200(a)(4)(iv) of the Commission’s rules,” and such waivers “provide relief through April 30, 2015.”  August 28 Order ¶ 11. The Bureau found that “the public interest is better served,” by granting these petitions and rejected arguments that by granting waivers while litigation is pending the Commission violates the separation of powers.  August 28 Order ¶ 13.  The Bureau held that “special circumstances” made the petitioners “deserving” of these limited waivers given that they all “reference[d] the contradictory language in the Commission’s fax opt-out decision,” and further stated that “no record evidence rebuts the . . . presumption of confusion or misplaced confidence.”  August 28 Order ¶ 14-16. The Bureau made clear that that the granting of a waiver is not a determination as to whether any particular faxes were, in fact, solicited:  “That remains a question for triers of fact in the private litigation.”  August 28 Order ¶ 17. Significantly, the Bureau also granted petitions of parties that filed after April 30, 2015 – a date that was referenced in its October 30, 2014 Fax Order.  August 28 Order ¶ 20. Notably, the Bureau rejected myriad arguments that certain commenters – predominantly plaintiffs in pending TCPA class action lawsuits – made in opposing this relief.

Web Messaging Platforms After The FCC’s Declaratory Ruling

While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).

The defendant in Luna moved for summary judgment on the ground that the promotional texts at issue were not sent via an ATDS, and instead were sent by a third party’s web-based messaging platform that: (1) lacked any capacity to generate random or sequential numbers; and (2) required significant human intervention to place texts. Id. at *4

The district court disagreed that the first issue excluded the platform from the ambit of the TCPA, on the ground that the FCC’s TCPA rulings, including the July 10 Declaratory Ruling, had expanded the definition of ATDS to encompass dialers that dial a “fixed set of numbers” from a list. Id. at *6. The district court also noted that the recent Declaratory Ruling expressly included “Internet-to-phone-text messaging technology” within the definition of ATDS. Id. citing Declaratory Ruling at ¶¶ 111-116.

But the district court went on to confirm that, even after the Declaratory Ruling, “the capacity to dial numbers without human intervention is required for TCPA liability.” Id. at *7. As for the text messages to plaintiff, these were sent as a result of human intervention, so as to entitle defendant to judgment. Id. at *9. Among other things, the numbers to be texted were input into the platform by defendant’s employee, the content of the messages were drafted by the same employee, and disseminated only upon the employee “hitting ‘send’” or otherwise determining the time at which the message would be sent. Id. at *9.

Luna thus provides a helpful reminder of the fundamental requirement – left unchanged by the recent Declaratory Ruling – that a platform must have the capacity to dial numbers without human intervention, before it may be deemed subject to the TCPA.



1st Circuit weighs in on Rule 68 Mootness Issue; Laments that “Uncertainty will Reign” until Supreme Court provides Guidance on Class Action Pick-Offs

We’ve been watching closely as the various Circuit Courts of Appeals grapple with whether a Rule 68 offer of judgment to the named plaintiff in a putative class action can render the case moot even if the plaintiff rejects the offer and wants to keep litigating. As we noted in a previous post, the U.S. Supreme Court is set to resolve the issue soon.

The First Circuit just weighed in and held that a rejected offer of judgment, standing alone, did not divest the court of Article III subject matter jurisdiction in a TCPA class action. Bais Yaakov of Spring Valley v. ACT, Inc., No. 14-1789 (1st Cir. Aug. 21, 2015). Key to the court’s decision was its view that the named plaintiff’s individual claim could be rendered moot only if the claim was “fully resolved” and the plaintiff actually “received complete relief.” The court noted that an unaccepted Rule 68 offer is deemed withdrawn according to the plain language of the rule, and “does not, in itself, provide any relief.”

The court did not address what impact entry of judgment in favor of the named plaintiff in accordance with an offer of complete relief might have on subject matter jurisdiction. Although ACT raised the possibility of that course of action, the court noted that ACT did not identify any rule authorizing or requiring a court to enter judgment in accordance with an unaccepted Rule 68 offer. Interestingly, although the court in its Rule 68 analysis referenced the dissenting opinion in Genesis Healthcare v. Symczk, 133 S. Ct. 1523, 1536 (2013) (Kagan, J., dissenting), the court appears to have overlooked Justice Kagan’s observation that courts have “discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders.”

The court identified, but did not resolve, several other issues surrounding the mootness determination in the context of an unaccepted Rule 68 offer. For example, the court questioned the proper standard for determining whether an offer actually provides complete relief, what qualifies as an ongoing economic stake in a matter under Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), and whether Roper remains good law as the Supreme Court called into doubt in Genesis Healthcare, 133 S. Ct. at 1532 n.5. Although the court ultimately rejected ACT’s mootness argument, it observed “we cannot claim to have achieved any lasting equilibrium insulating class actions from pick-off attempts” and lamented that “uncertainty will reign” until the Supreme Court provides more comprehensive guidance.

Centralization – When Is It an Option?

On Friday August 7, 2015, the Judicial Panel on Multidistrict Litigation (the “Panel”) issued four decisions in pending TCPA cases:  In re Holiday Cruise Line Tel. Consumer Prot. Act (TCPA) Litig., MDL No. 2637, 2015 U.S. Dist. LEXIS 103628 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re: Local Lighthouse Corp. Tel Consumer Prot. Act (TCPA) Litig., MDL No. 2644, 2015 US. Dist. LEXIS 103637 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re Portfolio Recovery Assoc., LLC, Tel. Consumer Prot. Act (TCPA) Litig., MDL 2295, 2015 U.S. Dist. LEXIS 103929 (J.P.M.L. Aug. 7, 2015) (granting motion to transfer for inclusion in coordinated or consolidated proceedings) and; In re Sirius XM Radio, Inc. Tel Consumer Prot. Act. (TCPA) Litig., MDL No. 2635, 2015 U.S. Dist. LEXIS 103629 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization).  The four cases have relatively little in common aside from the fact that each involved a claim under the TCPA: In re Portfolio Recovery Assocs. involved alleged debt collection calls over VOIP lines, In re Sirius involved marketing calls that occurred after a free subscription to Sirius XM radio expired, In re Holiday Cruise Line involved unsolicited text messages, and In re Local Lighthouse Corp. involved marketing calls to both cellular and landline numbers. Despite the factual differences between the cases, there are two broad lessons from this group of decisions.

First, the decisions show that the Panel is committed to a thorough review of the facts of each case and that it may deny centralization even if the parties agree that centralization is appropriate. See In re: Local Lighthouse Corp., 2015 U.S. Dist. LEXIS 103637, at * 1-2. The Panel explicitly addressed this in its decision in In re Holiday Cruise Line, when it noted that “there is not sufficient factual overlap among these actions to warrant centralization. Two actions allege Holiday made telephone calls using an autodialer. Additionally, one action alleges violation of the ‘Do-Not-Call’ registry.” 2015 U.S. Dist. LEXIS 103628, at *2-3. The Panel only transferred the action in In Re Portfolio Recovery Assoc., after finding that the action “involve[d] common questions of fact with the actions previously transferred to MDL. No. 2295. . . .” 2015 U.S. Dist. LEXIS 103929 at * 2. But even here the Panel noted that there were claims brought against an unrelated Defendant and it encouraged the transferee judge to determine whether those claims should remain part of the action. Id. at *3 (“We encourage the transferee judge to scrutinize the claims and determine whether the claims against the non-Portfolio defendant are sufficiently related to the claims against Portfolio to remain in centralized proceedings.”).

Second, in the three cases denying centralization, the Panel once again reminded the parties that they could still coordinate and cooperate even without centralization. See In re: Sirius XM, 2015 U.S. Dist. LEXIS 103629, at * 3 (“In our view cooperation among the parties will be the best route to resolving these actions.”); In re Holiday Cruise Line, 2015 U.S. Dist. LEXIS 103628, at *3 (“Given the limited number of actions and common facts and the relative lack of complexity of the common issues, information cooperation among the involved attorneys will be sufficient to minimize any potential for duplicative discovery and inconsistent pretrial rulings.”). In these cases the Panel stressed informal mechanisms as a route to avoiding duplicative efforts, instead of transfer.

Ultimately, these decisions show that transfer, though a potentially useful tool for any party, is not available in every case. As the Panel reminded each of the parties in the cases in which it denied centralization, informal tools remain available to ease the burden on parties when transfer is denied.

CodeBroker, LLC Files Additional Challenge to the FCC’s July 10, 2015 Declaratory Ruling and Order

On August 14, 2015, CodeBroker, LLC (“CodeBroker”) filed a petition for review of the FCC’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit.

This petition was consolidated with the previous petitions filed by ACA International, PACE, and Sirius XM Radio, Inc. on August 17, 2015. CodeBroker challenges: (1) the FCC’s determination that prior express consent may be revoked through “any reasonable means,” (2) the FCC’s treatment of prior express written consent with “respect to its requirement that callers obtain new prior express written consent for each call or text message made to a wireless number, and (3) 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.” Id. at 2-3.

CodeBroker asks the DC Circuit to vacate the Order or hold unlawful: (1) the FCC’s treatment of text messages sent to reassigned wireless telephone numbers, (2) the FCC’s determination that prior express consent may be revoked by “any reasonable means,” (3) the FCC’s determination that callers “seek prior express written consent for each call or text message sent to a wireless number,” and (4) the FCC’s treatment of reassigned numbers and compel the FCC to define “called party” as the intended recipient of the call or text and establish a viable safe harbor for text messages sent to reassigned numbers. Id. at 3-4.

Stay tuned as we continue to provide updates on developments in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order.

TCPA Blog Dissects July 10th Declaratory Ruling For Practical Law

TCPA Blog contributors Brad Andreozzi, Seamus Duffy, Laura Phillips and Michael Stortz recently discussed the July 10th Declaratory Ruling and Order in a Q&A with Practical Law that was published on August 13, 2015.  The Q&A answered a series of questions about the key holdings of the Declaratory Ruling, implications for companies facing potential exposure under the statute, and strategies for defending putative class actions in light of recent developments from the FCC and anticipated rulings from the United States Supreme Court.  Practical Law distributed the Q&A to its subscribers, posted the Q&A on its website, and will include an updated version of the Q&A in the Practical Law Journal this fall.

PACE and Sirius XM File Statements of Issues in the Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order

On August 17, 2015, the Professional Association for Customer Engagement, Inc. (“PACE”) and Sirius XM Radio Inc. (“Sirius”) (collectively, the “Petitioners”) filed identical statements of issues (read the PACE statement and the Sirius XM statement) in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The Petitioners’ statements focus on the following issues: (1) the FCC’s interpretation of the terms “capacity” and “called party” under the TCPA, (2) the FCC’s one call safe harbor provision for calls made to reassigned numbers, (3) the FCC’s treatment of revocation, and (4) the FCC’s authority to require prior express written consent for telemarketing calls.

Specifically, the Petitioners question whether the FCC’s “‘potential functionalities’ test for ‘capacity’ under the TCPA is arbitrarily vague under the Administrative Procedure Act and the Due Process Clause, violated the plain text of the TCPA, and conflicts with the First Amendment by subjecting millions of everyday devices to the TCPA’s prohibitions.” PACE Statement at 3; Sirius Statement at 3. The Petitioners contend that the FCC extended the scope of the TCPA to cover equipment that “lacks the present ability to store or produce telephone numbers to be called, using a random or sequential number generator.” Id. Next, the Petitioners raise the issue of whether the FCC’s interpretation of a “called party” as the current subscriber or customary user as opposed to the intended recipient violates the TCPA and APA. PACE Statement at 4; Sirius Statement at 4. The Petitioners state that callers rarely have actual or constructive knowledge of a reassigned number after one call and challenge the FCC’s one call (or attempted call) safe harbor provision. Id. Next, the Petitioners question whether the FCC “violated the TCPA and the APA by prohibiting callers from specifying the manner in which consent may be revoked and by forcing callers to accept revocations delivered in ways that do not reasonably inform them of the called party’s preferences.” Id. Finally, the Petitioners raise the issue of whether the FCC has the authority under the TCPA to require prior express written consent for telemarketing calls. Id.

Stay tuned as we continue to monitor and provide updates on developments in the consolidated appeal of the FCC’s Declaratory Ruling and Order.

ACA International Files Statement of Issues in its Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order

On August 12, 2015, ACA International (“ACA”), one of three petitioners in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, filed a statement of issues (D.C. Cir. filed Aug. 12, 2015) in its appeal of the FCC’s Order. ACA raises the following issues: (1) the FCC’s redefinition of an ATDS, (2) prior express consent, and (3) the FCC’s deviation from the statute’s intent.


ACA contends that the FCC’s redefinition of an ATDS, including its treatment of “capacity” and predictive dialers is “arbitrary, capricious, an abuse of discretion, and not in accordance with law, and result in an approach that does not comport with a caller’s constitutional right of due process and freedom of speech and that disregards the applicable statute.” Statement at 2. ACA contends that the Order disregards the statutory definition of ATDS by including “predictive dialers that do not fall within the statutory definition, and by disregarding the term ‘using a random or sequential number generator.’” Id. With regard to the term “capacity,” ACA contends that the Order “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Id. at 3.

Prior Express Consent

ACA contends that the FCC’s definition of a “called party” misinterprets the statute in such a way that will “result in liability for innocent and unknowing conduct.” ACA notes that, in light of the FCC’s acknowledgment that callers cannot discovery all reassignments immediately, the FCC’s conclusion that callers have constructive knowledge of a reassigned number after a single call even if the call is unanswered is “arbitrary, capricious, and an abuse of discretion.” Id. at 4-5. ACA also notes that the one-call safe harbor provision creates a “perverse incentive” for called parties who are not the intended recipients to conceal the reassignment to manufacture and multiply TCPA claims. Id. at 5. Finally, ACA states that the Order creates a right of revocation that is “not commercially viable, while rejecting several available approaches that were more reasonable and that also protected consumers.” Id. at 5-6.

Disregard of Statute

ACA states that Congress enacted the TCPA with an intent to balance “individuals’ privacy rights, public safety interests, and commercial freedoms of speech” in such a way that individual privacy is protected while legitimate telemarketing practices are permitted. Id. at 6. According to ACA, the Order deviates this intent by rejecting the balance in favor of an approach that “disregards ‘commercial freedoms of speech and trade’ and that weaves a regulatory web so tangled that it snared legitimate, compliant, law-abiding actors along with the abusive and intrusive callers at whose conduct the law is aimed.” Id. at 6-7.

Stay tuned as we continue to monitor and provide updates on developments in the consolidated appeal of the FCC’s Declaratory Ruling and Order.