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.

The Joint Petitioners’ arguments focus on the definition of an “automatic telephone dialing system” (“ATDS”), the identity of the “called party,” and the means by which consent can be revoked. Those arguments echo vigorous dissents from Commissioner Pai, who expressed concern over the Order’s expansive interpretation of the definition of an ATDS, and Commissioner O’Rielly, who took issue with the majority’s “refusal to acknowledge” part of the statutory definition of ATDS. The dissenting Commissioners also explained that, in defining a “called party” as the “actual recipient” rather than the “intended recipient” of a call, the majority disregarded the fact that comprehensive solutions to addressing reassigned numbers do not exist, adopted an untenable and unworkable “one-call exemption” for determining whether a wireless number has been reassigned even if the call was unanswered, and made it impossible for a caller to eliminate risk of exposure short of not placing calls at all. They also noted that the Order’s allowance for consumers who have previously given consent to be called to revoke that consent in any “reasonable manner” disregarded the significant burdens placed on callers to keep track of multiple modes of revocation from countless consumers.

During the pendency of the consolidated appeal, a number of courts across the country have stayed TCPA actions that hinge on one of more of these important threshold issues.  By way of example, Judge Rudolph T. Randa of the Eastern District of Wisconsin recently invoked his inherent authority to manage his docket and stayed a TCPA action pending the outcome of the regulatory appeal.  In doing so, he noted that the FCC’s interpretation of the definition of an ATDS seemed to “contradict[] the plain language of the statute.”  Because defining “capacity” in accordance with the statute’s plain language would dispose of the case, he stayed the case in the interest of judicial economy.

We will continue to monitor the pending appeal and report on any significant developments.







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).

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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