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Commissioner O’Reilly’s TCPA Speech Last Week Was a Great Gift to TCPA Defendants: Here’s How To Use It

As we reported at the time, FCC Commissioner O’Reilly gave a stirring address to a crowd attending an event in Washington D.C. last week. The speech offered a brave defense of legitimate business caught up in the false and unfair anti-robocall narrative and ensnared by often-frivolous and unfair TCPA suits seeking millions or billions in penalties for simple phone calls made—in many instances—to numbers provided by consenting customers.

As a sitting FCC Commissioner, O’Reilly’s speech offered a remarkable rebuke to courts that continue to misapply the TCPA and he offered a clear roadmap to Defendants wishing to leverage the pending Public Notice proceeding regarding the scope of the TCPA to stay litigation.

Here’s how to use it.

Take Away One: Courts Should Not be Trampling on the FCC’s Primary Jurisdiction to Interpret the TCPA

Commissioner O’Reilly clearly and specifically decries the “patchwork” approach taken by district courts following ACA Int’l. His words: “Unfortunately, the DC Circuit [Court of Appeals] victory did not stem that tide, as a patchwork of interpretations by both federal circuit and district courts flowed in response…”

When ACA Int’l was handed down TCPAWorld indeed had high hopes for clarity—especially around the crucial definition of ATDS. But the D.C. Circuit Court of Appeals stopped short of offering its own definition of the phrase, apparently leaving courts to sort it out for themselves. Except, it didn’t. What the D.C. Circuit Court of Appeals actually did was issue a mandate sending the issue back to the FCC for further proceedings. And it was that mandate that lead to the Public Notice the FCC Issued last May.

But rather than respect the FCC’s primary jurisdiction to define the term ATDS—and address the other issues raised by the Public Notice—following the ACA Int’l remand, courts have—by and large—imprudently rushed ahead and offered their own individual interpretations of the TCPA. This has led to the patchwork mess Commissioner O’Reilly decries. His message therefore, is clear: the Courts should stand down and allow the FCC to do its work as ACA Int’ldirected it to do.

TCPA defendants facing litigation should take this admonition to heart. By presenting this FCC Commissioner’s words to a Court they should argue that individual judges must not “take a stab” at interpreting the statute for themselves—thus adding to the “patchwork” mess that has lead TCPAWorld.com to create a rolling ATDS review—but should defer to the FCC’s expertise and fact-finding and policy-making abilities and stay cases requiring a determination of the meaning of, inter alia, ATDS.

Take Away Two: FCC Commissioner O’Reilly Believes the D.C. Circuit Court of Appeal Set Aside the FCC’s Earlier Rulings

When an FCC Commissioner tells you that his own Commission’s previous rulings are now defunct that is pretty powerful stuff. Remarkably that is just what Commissioner O’Reilly did in his speech when he called court rulings that continue to follow the FCC’s 2003 and 2008 rulings post ACA Int’l “illogical.”

Unsurprisingly, the good Commissioner is on solid legal footing when he opined that the 2003 and 2008 Predictive Dialer rulings from the FCC are no longer in effect. The ACA Int’l ruling very clearly found the 2003 and 2008 Predictive Dialer rulings inconsistent with the FCC’s later 2015 Omnibus ruling on the crucial issue of what functionalities an ATDS must perform to qualify under the statute. This recognized inconsistency—coupled with the ACA Int’l court’s express refusal to decline review of the earlier rulings—lead the Court to strike down the Omnibus as inconsistent with reasoned decision-making.

But inherent in that determination was that noneof the FCC’s ATDS rulings remain valid since they were previously in conflict with one another. Striking down the one interpretation does not—as some courts have “illogically” found—reinstate the earlier superseded  interpretation. Most courts have now recognized—as has the Ninth Circuit Court of Appeals in Marks—that the 2003 and 2008 rulings are defunct—but that doesn’t stop Morgan & Morgan and other law firms from arguing otherwise.

Maybe an FCC Commissioner’s direct and clear assessment of the matter will help change some minds. TCPA Defendants should not be shy in offering O’Reilly’s remarks in support of their briefing on these critical issues.

Take Away Three: FCC Commissioner O’Reilly Believes the Marks ATDS Definition is “Extremely Misguided”

After labeling ATDS decisions following the 2003 and 2008 predictive dialer rulings as “illogical” Commissioner O’Reily makes clear that cases following Marks are even worse. As he puts it, those decisions “pale[] in comparison to the medley of courts that have chosen to ignore the DC Circuit and instead follow the [Ninth Circuit Court of Appeals’] extremely misguided and breathtakingly expansive definition of ATDS as a device that stores numbers to be called, irrespective of whether they have been generated by a random or sequential number generator.  (Statutory text?  What statutory text?)”

Wow. That is just a breathtaking critique of a Ninth Circuit Court of Appeals decision. Still Commissioner O’Reilly is correct to point out that Marks ignores critical statutory language—that requiring the use of a random or sequential number generator—and re-writes the statute in a new and extremely expansive fashion. While a defense lawyer might be sheepish to characterize the Marks decision in such harsh and direct terms before Court—allowing an FCC Commissioner to make that critique for you is a remarkable asset.  Every Defense motion addressing ATDS issues outside of the Ninth Circuit footprint should absolutely include Commissioner O’Reilly’s quote and remind the court that the view from D.C. looks quite different than the view on the Pacific.

Take Away Four: You Must Must Must Get To the FCC and Raise your Voices

Commissioner O’Reilly delivered a clear message to TCPA defendants—if you don’t take action to advocate for TCPA reform you cannot expect the FCC to take action for you. Indeed the Commissioner states directly that FCC action will not be possible until industry “raise[s] awareness of the need for corrective actions to a much, much greater extent.”

Indeed the Commissioner hammered home this message again and again—industry participants must act to demand TCPA reform or expect an empty bowl: “It’s your job to convince my colleagues and agency staff to [reform the TCPA]…  It will take extensive cooperation and collaboration with everyone else caught in the TCPA spider web, screaming the same message at the same fever pitch.”

Again this is a remarkable entreaty from a sitting FCC Commissioner for TCPA defendants to raise their voices before the Commission—get up and get out to Washington to advocate for reform.

Indeed, for TCPA defendants this is the greatest take away from the speech. You have already been sued. The TCPA is plainly impacting you. If you are waiting for the FCC to clarify the statute in a helpful manner—stop waiting and start advocating.  By filing a petition with the FCC you can have the Commission consider the unique circumstances of your case and likely earn a stay of proceedings in the meantime. Even if you do not want to file a formal petition, Squire Patton Boggs can assist you to advocate for TCPA reform in connection with the already pending TCPA Public Notice. It’s a fairly quick yet powerful exercise that will help assure your voice is heard. And as Commissioner O’Reilly emphatically urges—your voice must be screaming along with all the rest for change to happen.

If you have the courage, we have the knowhow. Let’s show ‘em what we’re made of TCPAWorld.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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