DC Circuit Court of Appeals Hears Extended Oral Argument In The Consolidated Appeal

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As we previously reported, the United States Court of Appeals for the D.C. Circuit held oral argument this morning in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order. The issues before Judges Srinivasan, Pillard, and Edwards were: (1) the definition of an ATDS, particularly the Order’s treatment of the terms “capacity” and “using a random or sequential number generator;” (2) the identity of the “called party” from whom consent must be obtained and the impracticality of the Order’s one-call safe harbor provision; (3) the means by which consent may be revoked; and (4) whether healthcare-related calls should be afforded the same treatment they receive under HIPAA.

Paul Werner from Sheppard, Mullin, Richter & Hampton LLP argued on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day argued on behalf of the remaining joint petitioners, and Scott Noveck argued on behalf of the FCC. Although the argument was scheduled to last only forty minutes, it quickly became apparent that Judges Srinivasan, Pillard, and Edwards had concerns about portions of the Order and numerous questions for both parties. The argument ended up lasting more than two and half hours, the majority of which was devoted to what types of equipment qualify as an ATDS, and whether the one-call safe harbor provision strikes a tenable balance between protecting consumers and protecting callers that have been threatened with potentially annihilating liability for calling numbers in good faith that have been reassigned.

An audio recording of today’s argument is available here.

Oral Argument In The Consolidated Appeal To Be Heard This Upcoming Wednesday

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 from the FCC’s July 10, 2015 Declaratory Ruling and Order. Each side has been allotted twenty minutes of oral argument time, with petitioner Rite Aid arguing for five minutes on the healthcare-related issues of the Order, and the rest of the petitioners arguing fifteen minutes. Paul Werner from Sheppard, Mullin, Richter & Hampton LLP is scheduled to argue on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day is scheduled to argue on behalf of the remaining joint petitioners, and Scott Noveck is scheduled to argue on behalf of the FCC. The argument will be heard before Judges Srinivasan, Pillard, and Edwards.

For those planning on attending, doors open around 9:10 a.m. and entry into the courtroom is on a first-come, first-served basis. Instructions on attendance can be found here. We plan to be in attendance and report back after the oral argument.

The New York Police Department’s Use of Wireless Emergency Alert System to Seek Help in Locating Bombing Suspect: A New Use for these Alerts

Following an explosion in September in the Chelsea neighborhood of New York City and discovery of other unexploded homemade bomb devices, the New York Police Department identified a suspect, Ahmad Khan Rahami, who was sought in connection with the bombings and attempted bombings in Manhattan and New Jersey. For the first time ever in this circumstance, the NYPD used a communications tool initially known as the “Commercial Mobile Alert System” (CMAS) and later renamed to be “Wireless Emergency Alerts” or WEA to function as an electronic wanted poster. This was in contrast to more familiar uses of this emergency communications capability, such as the localized transmission of severe weather advisories or Amber Alerts. Under FCC rules, these alerts are originated by authorized federal, state and local governments, and they currently are used to geographically target 90-character messages that fall into three distinct categories: Presidential, Imminent Threat, and Amber Alerts. Continue reading

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

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.

FCC and District Court Provide Additional Clarity to the TCPA’s Emergency Purpose Exception

Over two years ago, we first argued that a pharmacist’s prescription refill reminder calls fell within the emergency purpose exception to the TCPA in Kolinek v. Walgreen Co. (N.D. Ill.).  The TCPA, of course, prohibits many types of autodialed or pre-recorded/artificial voice calls to cell phones if made without the prior express consent of the called party, except where the calls are made “for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). In Kolinek, the court held at the motion to dismiss stage that further factual development was necessary to evaluate whether the emergency purpose exemption precluded plaintiff’s claims because the complaint did not allege sufficient detail regarding the nature of the calls. Although the case settled before the court had the opportunity to rule on the issue on summary judgment, the court acknowledged the viability of the emergency purposes defense as a basis for approving the class action settlement despite objections that the settlement fund was a tiny fraction of potential liabilities. Continue reading

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

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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NACDS Files Amicus Brief in Support of Petitioner Rite Aid in Consolidated Appeal of FCC’s TCPA Order

On December 2nd, the National Association of Chain Drug Stores, Inc. (“NACDS”) submitted an amicus brief in support of member organization and petitioner Rite Aid in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). We reported earlier that Rite Aid filed its opening brief focusing on the healthcare-related portions of the Order on November 25th, the same day the joint petitioners filed their opening brief. The NACDS notes that it also supports the joint petitioners’ arguments related to reassigned numbers, automatic telephone dialing systems, and revocation of consent but submitted a separate amicus brief to address the impact of the Order on critical patient healthcare notifications. Brief at 2 n.1.

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