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.

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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Rite Aid Files Opening Brief in Consolidated Appeal of FCC’s TCPA Order

On November 25th, petitioner Rite Aid Hdqrtrs. Corp. (“Rite Aid”) filed its opening brief 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.). Although Rite Aid supports the opening brief filed by the joint petitioners on the same day, it obtained permission to file a short separate brief focusing on the healthcare-related portions of the Order. (Whereas the joint petitioners’ opening brief was limited to 14,000 words, Rite Aid’s opening brief was limited to 2,500 words.)

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What You Need to Know About the FCC’s July 10th Declaratory Ruling on the Telephone Consumer Protection Act (TCPA)

A sharply divided FCC late Friday issued its anticipated TCPA Declaratory Ruling and Order (the “Declaratory Ruling”).  This document sets forth a range of new statutory and policy pronouncements that have broad implications for businesses of all types that call or text consumers for informational or telemarketing purposes.  While some of its statements raise interesting and in some cases imponderable questions and practical challenges, this summary analysis captures the FCC’s actions in key areas where many petitioners sought clarification or relief.  Certainly there will be more to say about these key areas and other matters as analysis of the Declaratory Ruling and consideration of options begins in earnest.  There will undoubtedly be appeals and petitions for reconsideration filed in the coming weeks.  Notably, except for some limited relief to some callers to come into compliance on the form or content of prior written consents, the FCC’s Order states that the new interpretations of the TCPA are effective upon the release date of the Declaratory Ruling.  Requests may be lodged, however, to stay its enforcement pending review.

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FCC Chairman Proposes to Clarify TCPA Rules at June Meeting

FCC Chairman Tom Wheeler released a fact sheet and issued a blog post this week announcing that he had circulated a proposed order that would rule on the numerous petitions that companies have filed with the FCC seeking clarity on the TCPA rules. According to the Chairman, his proposal reflected in the draft order would “close loopholes and strengthen consumer protections already on the books.” The FCC is expected to vote on the Chairman’s proposal at its monthly meeting currently scheduled for June 18, 2015.

Although details have not been made public, the statements from Chairman Wheeler provide some insight as to what he has proposed:

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