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.

John S. Yi

About the Author: John S. Yi

John Yi represents clients in civil and criminal litigations in federal court, as well as investigations and enforcement actions by the Federal Trade Commission (FTC), the U.S. Department of Justice (DOJ), the Securities and Exchange Commission (SEC), and other federal and state regulatory bodies. For clients in health care and other sectors, he handles a full array of antitrust issues. John has helped secure merger clearances from federal regulators and defended clients’ interests in suits alleging a variety of anticompetitive conduct. He has assisted companies with internal investigations and compliance strategies. John also has experience handling all aspects of civil litigation, including discovery, settlement, dispositive motions, trial advocacy and appellate work. John also defends a number of class action cases with a wide variety of claims, including issues arising under federal and state antitrust laws, the Telephone Consumer Protection Act (TCPA) and the Fair Credit Reporting Act (FCRA).

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