On September 2, 2015, the Chamber of Commerce of the United States (“Chamber”) filed its own petition 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 Chamber of Commerce of the US v. FCC, No. 15-1306 (D.C. Cir. filed Sept. 2, 2015). Chamber challenges: (1) the inclusion of equipment that does not have the present capacity to “store or produce telephone numbers to be called, using a random or sequential number generator,” and “to dial such numbers” within the scope of an ATDS, (2) the determination that the term “called party” refers to the current subscriber or customary user of the phone instead of the intended recipient of the call, (3) the one-call exemption before imposing strict liability for calls made to reassigned numbers, and (4) the provision that allows a called party to revoke prior express consent at any time through any reasonable means, while callers are prohibited from limiting the manner in which consent may be revoked. Id. at 2-3.

As relief, Chamber asks the DC Circuit to vacate or reverse the unlawful parts of the Order and remand those unlawful parts to the FCC for an order that is consistent with the court’s findings. Id. at 4.

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.

As anticipated, additional parties continue to join the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. On August 26, 2015, salesforce.com inc. and its wholly-owned subsidiary ExactTarget, Inc. (collectively “Salesforce”) filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit. See Salesforce.com Inc., et al. v. FCC, No. 15-1290 (D.C. Cir. filed Aug. 26, 2015). On September 1, 2015, the Consumer Bankers Association (“CBA”) filed its own petition for review. See Consumer Bankers Assoc. v. FCC, No. 15-1304 (D.C. Cir. filed Sept. 1, 2015).

Continue reading “Two Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order”

On August 14, 2015, CodeBroker, LLC (“CodeBroker”) filed a petition 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.

This petition was consolidated with the previous petitions filed by ACA International, PACE, and Sirius XM Radio, Inc. on August 17, 2015. CodeBroker challenges: (1) the FCC’s determination that prior express consent may be revoked through “any reasonable means,” (2) the FCC’s treatment of prior express written consent with “respect to its requirement that callers obtain new prior express written consent for each call or text message made to a wireless number, and (3) the FCC’s interpretation of the term “called party” as the current subscriber or customary user of the phone instead of the intended recipient of the call.” Id. at 2-3.

CodeBroker asks the DC Circuit to vacate the Order or hold unlawful: (1) the FCC’s treatment of text messages sent to reassigned wireless telephone numbers, (2) the FCC’s determination that prior express consent may be revoked by “any reasonable means,” (3) the FCC’s determination that callers “seek prior express written consent for each call or text message sent to a wireless number,” and (4) the FCC’s treatment of reassigned numbers and compel the FCC to define “called party” as the intended recipient of the call or text and establish a viable safe harbor for text messages sent to reassigned numbers. Id. at 3-4.

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.

On August 17, 2015, the Professional Association for Customer Engagement, Inc. (“PACE”) and Sirius XM Radio Inc. (“Sirius”) (collectively, the “Petitioners”) filed identical statements of issues (read the PACE statement and the Sirius XM statement) in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The Petitioners’ statements focus on the following issues: (1) the FCC’s interpretation of the terms “capacity” and “called party” under the TCPA, (2) the FCC’s one call safe harbor provision for calls made to reassigned numbers, (3) the FCC’s treatment of revocation, and (4) the FCC’s authority to require prior express written consent for telemarketing calls.

Continue reading “PACE and Sirius XM File Statements of Issues in the Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order”

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.

Continue reading “ACA International Files Statement of Issues in its Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order”

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).

Continue reading “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, 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.

Continue reading “Debt Collection Agencies File Motion to Intervene in Support of Consolidated Appeal of 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.’”

Continue reading “Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling”

While the July 10, 2015 Declaratory Ruling and Order (our summary of which can be found here) was released after the close of business on Friday, one petitioner has already filed a petition for review of the Declaratory Ruling: ACA International (the Association of Credit and Collection Professionals) (“ACA”).  ACA filed its petition for review with the United States Court of Appeals for the District of Columbia Circuit on July 10, and filed an amended petition on July 13. See ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 10, 2015).  ACA challenges the FCC’s “treatment of ‘capacity’ within the definition of an automatic telephone dialing system,” the FCC’s “treatment of predictive dialers,” and the FCC’s interpretation of the term “‘prior express consent’ (including its treatment of reassigned numbers.” Amended Petition for Review at 2-3, ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 13, 2015), Doc. No. 1562251. ACA asks the DC Circuit  to hold unlawful the FCC’s treatment of “capacity” and compel the FCC to “treat ‘capacity’ in a way that comports with a caller’s right of due process and free speech;” hold unlawful the FCC’s treatment of “predictive dialers” and compel the FCC to “treat them in a way that does not expand the statutory definition . . . beyond the definition that Congress enacted;” and hold unlawful the FCC’s treatment of “prior express consent, including the Commission’s treatment of reassigned numbers,” and compel the Commission to establish either a “viable safe harbor for autodialed ‘wrong number’ non-telemarketing calls to reassigned wireless numbers” or “define ‘called party’ as a call’s intended recipient.”  Id. at 4-5.