Parties Continue to Challenge the FCC’s July 10, 2015 Declaratory Ruling and Order

On September 4, 2015, both Vibes Media, LLC and Rite Aid Hdqrtrs. Corporation filed petitions 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. See Vibes Media, LLC v. FCC, No. 15-1311 (D.C. Cir. filed Sept. 4, 2015); see also Rite Aid Hdqtrs. Corp. v. FCC (D.C. Cir. filed Sept. 4, 2015). Both petitions have been added to the consolidated appeal.

Vibes Media challenges four aspects of the Order: (1) its interpretation of an ATDS, (2) its treatment of reassigned numbers and provision of an “illusory one-call exemption for calls to reassigned numbers,” (3) its standard for revocation of consent, and (4) its lack of disregard for the distinction between text messages and phone calls. See Vibe Petition at 2-3. As relief, Vibes Media asks the D.C. Circuit to set aside the Order as unlawful. Id. at 3.

Rite Aid challenges the Order’s treatment of HIPAA-protected health care messages made to residential lines versus cellular lines. Specifically, Rite Aid notes that the Order exempts the consent requirement for such calls made to residential lines, but requires prior express consent for the same calls if they are made to wireless numbers. See Rite Aid Pet. at 1-2. Rite Aid also challenges the exclusion of HIPAA-permitted calls from the Order’s carve out for exigent messages that have a healthcare treatment purpose. Id. at 2. Rite Aid contends that the “FCC’s disparate treatment of residential and wireless telephone calls delivering HIPAA-protected health care messages and carve out for ‘exigent’ messages are irrational and unsupported and sure to spawn further confusion and wasteful litigation against legitimate providers ….” Id. As relief, Rite Aid asks the DC Circuit to hold unlawful and vacate the unlawful parts of the Order and remand those parts to the FCC for further action consistent with the court’s opinion. Id.

Stay tuned as we continue to provide updates on developments in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order.

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).