As anticipated, additional challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order are being filed across the country (we reported earlier that ACA International first filed a petition for review on July 10, 2014). PACE (the Professional Association for Customer Engagement, Inc.) filed its petition for review with the United States Court of Appeals for the Seventh Circuit on July 14, 2015. See Prof’l Ass’n for Customer Engagement, Inc. v. FCC, No. 15-2489 (7th Cir. filed July 14, 2015). 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. See Sirius XM Radio, Inc. v. FCC, No. 15-1218 (D.C. Cir. filed July 14, 2015). PACE and Sirius challenge the FCC’s “expan[sion] [of] the TCPA’s reach by sweeping in calls to wireless numbers made from equipment that lacks the present capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ and ‘to dial such nmbers.’”
Pace Petition at 2; Sirius Petition at 2. Both petitioners also challenge the FCC’s definition of the term “‘called party’ for purposes of the TCPA’s consent provisions as the ‘current subscriber (or non-subscriber customary user of the phone)’ rather than the ‘intended recipient.’” Pace Petition at 3; Sirius Petition at 2-3. PACE and Sirius ask the D.C. and Seventh Circuits to hold unlawful and vacate the FCC’s Declaratory Ruling and Order. Pace Petition at 3; Sirius Petition at 3.
Now that petitions have been filed in at least two different courts of appeals, upon notice from the FCC, the Judicial Panel on Multidistrict Litigation will randomly select one court of appeals from among the court of appeals in which petitions have been filed and issue a subsequent order consolidating the petitions for review in the selected venue. See 28 U.S.C. § 2112. Stay tuned as we will continue to provide updates on additional challenges to the FCC’s Declaratory Ruling and Order, as well as the selected venue for these petitions.