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Appeals Court Clarifies Issues Regarding Robocalls and Consent

On Friday, March 16, the U.S. Court of Appeals for the District of Columbia Circuit has issued a ruling in the case of ACA International v. FCC, clarifying several issues with regard to consumer and industry rights pertaining to robocalls and texts sent to consumers.

ACA International challenges the FCC’s interpretations of the Telephone Consumer Protection Act of 1991 (TCPA), as laid out in a July 2015 Omnibus Declaratory Ruling and Order. At issue were four particular questions pertaining to the interpretation of TCPA rules. As laid out on ACA International’s website, ACA focused their arguments on three areas: “the definition of an ‘automatic telephone dialing system,’ the identity of the ‘called party’ in the reassigned number context, and the means by which consent can be revoked.”

During the 2017 ACA Convention and Expo in Seattle, ACA’s Corporate Counsel Karen Scheibe Eliason told attendees, “ACA sought judicial determination of whether the FCC ignored the controlling statute in order to expand the scope and reach of the TCPA in a way that Congress never intended, leaving a law in place that hurts legitimate, law-abiding businesses.”

The Court of Appeals sided with the FCC when it came to issues of consent revocation. The Appeals Court’s cites and supports the FCC’s argument that “‘a called party may revoke consent at any time and through any reasonable means’—whether orally or in writing—‘that clearly expresses a desire not to receive further messages.”

On the topic of what constitutes a robocaller or “‘automatic telephone dialing system,” the Court sided with ACA, pointing out that the FCC’s previous interpretation could lead to unintended consequences such as ordinary people suddenly finding themselves in violation of the law simply by making use of their smartphone. The opinion reads:

“Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time. If she lacks prior express consent to send the invitation, and if she obtains the acquaintance’s cell phone number from a mutual friend, she ostensibly commits a violation of federal law by calling or sending a text message from her smartphone to extend the invitation.”

Finally, the Appeals Court sided with ACA with regard to instances where a robocaller calls an existing number that has been reassigned, thus inadvertently making an unsolicited call to a person with whom the organization does not have a prior business relationship or express consent to receive calls. Previous FCC interpretations had allowed for one mistaken call to a given number under these circumstances, but ACA argued that that number was arbitrary.

Although the court sided with ACA against the FCC on two of the three issues, current FCC Chairman Ajit Pai released a statement that actually supported the ruling. Pai, who dissented against the 2015 FCC clarification, said, “Today’s unanimous D.C. Circuit decision addresses yet another example of the prior FCC’s disregard for the law and regulatory overreach. As the court explains, the agency’s 2015 ruling placed every American consumer with a smartphone at substantial risk of violating federal law. That’s why I dissented from the FCC’s misguided decision and am pleased that the D.C. Circuit too has rejected it.”

FCC Commissioner Michael O’Rielly also voiced his support of the Appeals Court’s interpretation, releasing a statement that read, “I am heartened by the court’s unanimous decision, which seems to reaffirm the wording of the statute and rule of law. This will not lead to more illegal robocalls but instead remove unnecessary and inappropriate liability concerns for legitimate companies trying to reach their customers who want to be called.”

Sen. Ed Markey (D-Massachusetts) was less enthused by the ruling. “The D.C. Circuit Court invalidated core protections that help give consumers reasonable control over their mobile devices,” Markey said. “It is now the FCC’s obligation to use its existing authority to reestablish robust, enforceable protections to enhance the precious zone of privacy created by the law.”

About Author: David Wharton

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