Parties Seek Twenty Minutes Of Oral Argument In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

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Yesterday, the petitioners in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order filed an unopposed motion seeking twenty minutes of oral argument for each side. As we previously reported, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal.

In requesting twenty minutes of oral argument time, the petitioners note the importance and the complexity of the issues raised in their petitions for review. Namely, “the kinds of equipment that fall within the [TCPA’s] restrictions on calls to wireless numbers from ‘automatic telephone dialing systems,” “the scope of liability for those who call numbers that (unbeknownst to them) have been reassigned from one, consenting consumer to another, non-consenting one,” “the methods by which consumers may revoke consent[,]” and the types of “informational healthcare-related” calls that fall outside of the TCPA’s scope.  As such, the petitioners request that each side be allotted twenty minutes of oral argument time with petitioner Rite Aid arguing five minutes on the healthcare-related issues of the Order and the rest of the petitioners arguing fifteen minutes.

We will continue to monitor the pending appeal and report on any significant developments before and after oral argument on October 19th.

Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

Yesterday, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order (“Order”). As we previously reported, ACA International filed the first petition for review on the same day the Order was issued. That and subsequent appeals were centralized in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation.  The Joint Petitioners filed their opening brief on November 25, 2015, Rite Aid filed a separate brief the same day that focused on healthcare-related issues, the FCC responded to both briefs on January 15, 2016, and the parties filed final briefs on February 24, 2016. Continue reading

Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete

On Wednesday the Joint Petitioners and the FCC filed their final briefs in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order, which is pending in the United States Court of Appeals for the D.C. Circuit. Their briefs are summarized below.

The Joint Petitioners’ Final Brief

The Joint Petitioners’ final brief reiterates their primary challenges to the FCC’s rulings regarding the definition of an ATDS, the identity of the “called party” from which consent must be obtained, and the extent of that party’s ability to revoke that consent. Continue reading

Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order

On February 16th, the joint Petitioners, supporting Intervenors, and Rite Aid Hdqrtrs. Corp. (“Rite Aid”) each filed a reply brief in support of the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. Each brief addresses the deficiencies of the FCC’s response filed on January 15th, which was first reported here. The main arguments are summarized below. Continue reading

Two Amicus Briefs Filed in Support of the FCC’s July 10th Omnibus Ruling

On January 22, 2016, two amicus briefs were filed in support of the FCC’s July 10, 2015 Omnibus Ruling in the consolidated appeal before the District of Columbia Circuit. One brief was filed by the National Consumer Law Center, National Association of Consumer Advocates, Consumers Union, AARP, Consumer Federation of America, and MFY Legal Services (collectively the “NCLC Amici”). The other was filed by the Electronic Privacy Information Center (“EPIC”), Constitutional Alliance, Consumer Watchdog, Cyber Privacy Project, Patient Privacy Rights, Privacy Rights Clearinghouse, and Privacy Times (collectively the “EPIC Amici”). The main arguments of each brief are summarized below. Continue reading

FCC Responds In Consolidated Appeal From Its July 2015 Omnibus Ruling

On Friday, January 15, 2016, the Federal Communications Commission filed its response to the arguments of the joint Petitioners in the consolidated appeal from its July 10, 2015 Omnibus Ruling. The Commission’s brief addresses the scope of its statutory authority, the definition of an “automatic telephone dialing system” (“ATDS”), the meaning of “called party” and the potential liability for calls to recycled numbers, the ability to revoke consent, healthcare-related calls and the emergency purpose exception, and First Amendment challenges to the Commission’s interpretations of the statute. Its main arguments are summarized below.

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District Courts Stay TCPA Cases in Light of Spokeo, Gomez, and D.C. Circuit Appeal

A number of federal district courts have recently stayed TCPA cases pending the outcome of Supreme Court proceedings in Robins v. Spokeo, Inc. and Campbell-Ewald Co. v. Gomez, and the outcome of petitions seeking review of the FCC’s July 10, 2015 Declaratory Ruling and Order (“FCC Order”) that are currently pending before the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. F.C.C., No. 15-1211 (D.C. Cir. 2015).

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Why Everyone Is Upset About The Third Circuit’s Recent TCPA Decisions … And A Few Reasons Why They Shouldn’t Be: Part II

This is the second of two posts discussing the Third Circuit’s recent TCPA decisions. This one, Dominguez v. Yahoo, Inc., No. 14-1751 (3d Cir.), concerns the proper interpretation of the term “automatic telephone dialing system” (“ATDS”), which is front and center in the consolidated appeal from the FCC’s July 10th Declaratory Ruling and Order.

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Portfolio Recovery Associates, LLC Joins the Consolidated Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order

On September 8, 2015, Portfolio Recovery Associates, LLC (“PRA”) filed its own 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. PRA states that it participated in the underlying proceedings by submitting comments to ACA International’s Petition for Rulemaking. Id. at 3. PRA contends that while the purpose of the underlying proceedings was to provide clarity to previous interpretations of various TPCA provisions, the Order disregards the TCPA’s language and intent while unlawfully holding callers to unreasonable standards. Id. Specifically, PRA challenges the Order’s: (1) assertion that “equipment can be an ATDS even if it has none of the statutorily required features,” (2) provision allowing a called party to revoke consent at any time through any reasonable means while callers are prohibited from establishing methods for revocation, and (3) provision imposing strict liability for calls made to reassigned numbers after the first call regardless of whether the caller is aware that the number has been reassigned. Id. As relief, PRA asks the DC Circuit to vacate or reverse the unlawful parts of the Order and remand those parts to the FCC for further action consistent with the court’s findings. Id. at 4.

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