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.
John S. Yi
Articles by John S. Yi:
Council of American Survey Research Organizations and the Marketing Research Association File Motion to Intervene in Support of Consolidated Appeal of FCC’s July 10, 2015 Declaratory Ruling
As we previously noted, on August 7, 2015, MRS BPO LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., and Mercantile Adjustment Bureau, LLC filed a joint motion for leave to intervene in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, or in the alternative, leave to participate as amici curiae in support of petitioner, ACA International. On August 12, 2015, the Council of American Survey Research Organizations (“CASRO”) and the Marketing Research Association (“MRA”) (collectively, “Intervenors”) filed their own joint motion for leave to intervene in the consolidated appeal of the FCC’s Order. See Motion to Intervene (D.C. Cir. filed Aug. 12, 2015).
Debt Collection Agencies File Motion to Intervene in Support of Consolidated Appeal of FCC’s July 10, 2015 Declaratory Ruling
As we previously noted, three petitions for review were filed in the immediate aftermath of the FCC’s Declaratory Ruling and Order, which were then consolidated and randomly assigned to the United States Court of Appeals for the D.C. Circuit. On August 7, 2015, MRS BPO LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., and Mercantile Adjustment Bureau, LLC filed a joint motion for leave to intervene in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, or in the alternative, leave to participate as amici curiae in support of petitioner, ACA International.
Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling
As anticipated, additional challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order are being filed across the country (we reported earlier that ACA International first filed a petition for review on July 10, 2014). PACE (the Professional Association for Customer Engagement, Inc.) filed its petition for review with the United States Court of Appeals for the Seventh Circuit on July 14, 2015. See Prof’l Ass’n for Customer Engagement, Inc. v. FCC, No. 15-2489 (7th Cir. filed July 14, 2015). On the same day, Sirius (Sirius XM Radio, Inc.) filed a virtually identical petition for review with the United States Court of Appeals for the District of Columbia Circuit. See Sirius XM Radio, Inc. v. FCC, No. 15-1218 (D.C. Cir. filed July 14, 2015). PACE and Sirius challenge the FCC’s “expan[sion] [of] the TCPA’s reach by sweeping in calls to wireless numbers made from equipment that lacks the present capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ and ‘to dial such nmbers.’”
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Federal Court Denies Certification, Declines To Infer A Lack of Consent From A Lack Of Documentary Evidence Of Consent
The Middle District of Florida recently denied class certification because the plaintiff failed to prove that consent (or more to the point, an alleged lack of consent) could be established on a classwide basis. In doing so, it confirmed that class action plaintiffs have the burden of proving that issues are susceptible to classwide proof even though a defendant may bear the burden of proving or disproving some of those issues at trial. See Shamblin v. Obama for Am., No. 13-2428, 2015 U.S. Dist. LEXIS 54849 (M.D. Fla. Apr. 27, 2015).