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.

NCLC Amici’s Brief

The NCLC Amici open by suggesting that if the consolidated appeal “were to be successful, an unprecedented number of robocalls, affecting nearly every consumer in the nation, would be unleashed.” NCLC Brief at 1. Against this ominous backdrop, they argue that many people “rely exclusively on their cell phones as their only means of communication” and that “[m]any, if not most, of the households living below the poverty line rely on pay-as-you-go, limited-minute prepaid wireless products.” Id. at 4. “Allowing calls without the consent of the person called, limiting the right to revoke consent, or curbing the definition of autodialer … would be devastating for households struggling to afford essential telephone service.” Id. at 5. And since drivers “cannot resist the imperious ring of the wireless telephone[,] …. [m]ore robocalls will inevitably lead to more distracted drivers and, inescapably, more accidents.” Id. at 6. The NCLC Amici state that, “even if there are instances of improperly litigious individuals, the judicial system has mechanisms to protect against meritless cases.” Id. at 8, 10. They contend that the “fictional threat of spurious litigation” or a “few problematic class actions” should not “diminish the necessity of fostering effective enforcement of the significant protections provided by the TCPA.” Id. at 11, 12.

The NCLC Amici then address the joint petitioners’ arguments. First, they argue that the FCC’s definition of an autodialer is not a new interpretation but rather, a reiteration of the FCC’s 2003 and 2008 Order, and if the Court were to “grant the industry’s requests in this case, it would have to ignore over 20 years of FCC rulings and guidance on the interpretation and application of the TCPA ….” Id. at 14-16. As a result, “the TCPA would apply only to some hypothetical, unused technology,” [and] “[v]irtually every business would be free to robocall with impunity, regardless of consent and regardless of the purpose of the call.” Id. at 16. Second, they contend that interpreting the term “called party” as the intended recipient instead of the actual recipient of the call is a “tortured analysis” of the TCPA’s plain language that leaves “innocent customers who receive uninvited, wrong number calls without recourse.” Id. at 16, 17. As for recycled number calls, the NCLC Amici propose that businesses “can combine existing technologies with other strategies to prevent wrong number calls, such as making a manual call first, or developing a method to confirm that the called party is the intended recipient.” Id. at 21. Third, they opine that “[a]ny ‘reasonable’ means to revoke consent is appropriate and consistent with the TCPA’s plain reading” and that any “objection to a reasonableness standard is alarming, and indicative that – absent this requirement – these industry groups would seek to impose unreasonable measures to restrict revocation of consent.” Id. at 22, 23 (emphasis in original).

Finally, the NCLC Amici argue that Rite Aid is asking the D.C. Circuit to “turn the FCC regulations on their head by exempting all telemarketing of health care products,” which “would permit an onslaught of robocalls to cell phones about all sorts of pharmacy products, from aspirin to toothpaste, without consent.” Id. at 27.

EPIC Amici’s Brief

The EPIC Amici argue that “cell phones are central to American life,” “residential telephone is in rapid decline,” and “[t]he growing substitution of cell phones for landline telephones has amplified the nuisance and privacy invasion caused by unsolicited automated communications.” Epic Brief at 13, 14-15. They state that “unsolicited calls and texts … facilitate fraud, drain battery life, eat into data plans and phone memory space, and demand attention when the user would rather not be interrupted.” Id. at 15. They also question the source of the petitioners’ and the dissenting FCC Commissioners’ contention that 37 million telephone numbers are recycled each year. Id. at 17-18 (“Amicus EPIC undertook extensive research and study to ascertain the actual source of the ‘37 million’ number but hit a dead end.”). They state that data shows that number portability is on the rise and “has significantly reduced the number of consumers whose numbers must be reassigned.” Id. at 21.

Next, the EPIC Amici state that the FCC’s “allocution of rights and responsibilities is sensible because the companies that seek to engage in invasive business practices are in the best position to avoid harmful behavior.” Id. They base this off of the notion that “consumers have little knowledge of or control over when a caller chooses to make an automated or prerecorded call, and consumers who acquire a recycled number have no knowledge of or control over the decisions made by the previous subscriber.” Id. at 30. On the other hand, “companies seeking to make automated calls know which numbers they intend to call and what equipment they intend to use,” which is why they contend these companies “must bear the legal burden of ensuring that meaningful consent is obtained from the subscribers contacted.” Id. at 27.

The EPIC Amici suggest that the petitioners and their supporters “can mobilize substantial economic influence to create market solutions – such as comprehensive reassigned number databases or industry-adopted minimum aging periods fir reassigned – with far greater ease than individual consumers.” Id. at 31-32.

Next Steps in the Consolidated Appeal

The reply briefs of the Petitioners and the intervenors supporting them are due on February 16, the joint appendix is due on February 19, and final briefs are due on February 24. Oral argument has not yet been scheduled.

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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