Petitioners Coordinate Efforts in Consolidated Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order

On September 21, 2015, petitioners ACA International, Sirius XM Radio, Inc., Professional Association for Customer Engagement, Inc., inc. and ExactTarget, Inc., Chamber of Commerce of the United States of America, Consumer Bankers Association, Vibes Media, LLC, Rite Aid Hdqtrs. Corp., and Portfolio Recovery Associates (collectively “Petitioners”) filed an unopposed joint motion for briefing format and schedule in their consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. See ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed Sept. 21, 2015).

The Petitioners state that they “represent a broad array of businesses that operate in widely varying economic sectors, from healthcare services to satellite radio to debt collection …. [and] [g]iven the considerable differences among them, each Petitioner brings a somewhat different focus to this litigation.” Id. at 5-6. Although the various petitions focus on different aspects of the Order, the Petitioners state that they are collaborating and intend to challenge the following three aspects of the Order in one consolidated brief: (1) interpretation of ATDS, (2) treatment of reassigned numbers, and (3) treatments of revocation of consent. Id. at 6-7. Specifically, Petitioners challenge the FCC’s ATDS interpretation of “capacity” to include “potential functionalities” and inclusion of “different, mutually incompatible tests for what an ATDS must be able to do ….” Id. at 6. The Petitioners also challenge the FCC’s interpretation of “called party” as the current subscriber or customary user of the number rather than the intended recipient and argue that the one-call safe harbor provision fails to sufficiently address the problems associated with reassigned numbers. Id. at 7. Finally, the Petitioners argue that the Order’s requirement that callers “accept revocation of consent by any ‘reasonable’ means …. puts impossible, unnecessary logistical demands on businesses.” Id.

Rite Aid intends to separately challenge the Order’s differing treatment of calls delivering protected heathcare-related information to cellular lines with identical calls made to residential lines, as well as the FCC’s exemption of only “a narrow set of exigent treatment-related healthcare calls from the ATDS provision’s restrictions.” Id. at 7-8.

The Petitioners request that they be permitted to file an opening brief of 14,000 words with Rite Aid filing a targeted opening brief of 2,500 words addressing the healthcare-related aspects of the Order. Id. at 8. The Petitioners also propose that the briefing schedule conclude by the end of February 2016 with oral arguments conducted before the end of the 2015-2016 Term. Id. at 9.

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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