D.C. Circuit Reigns in FCC’s Overbroad TCPA Interpretations
On March 16, a year and a half after hearing oral argument, the D.C. Circuit Court of Appeals issued a long-awaited decision overturning two of the Federal Communications Commission’s (FCC) far-reaching interpretations of the Telephone Consumer Protection Act of 1991 (TCPA). A number of regulated entities filed an action against the FCC challenging several of the FCC’s conclusions in a 2015 order related to cell phones.
By way of background, Congress enacted the TCPA in 1991 in an effort to combat unwanted robo calls. The TCPA provisions before the D.C. Circuit involved calls to cellular phones. Specifically, the law prohibits the use of “any automatic telephone dialing system” to call a cell phone unless the called party consents. The TCPA has other exceptions for emergency calls and calls to collect government debts. The FCC issued a Declaratory Ruling and Order in 2015 responding to numerous requests for rulemaking or clarification to address confusion about the extent of the TCPA’s applicability.
Among other things, the 2015 FCC order sought to clarify the TCPA’s prohibition against using automated dialing devices to make unsolicited calls. The order essentially deemed all smartphones “autodialers” under the TCPA because such a phone could be configured to be an autodialer, regardless of its current functionality. As the court noted, this led to the absurd result of potentially subjecting smartphone users to penalties under the TCPA if they simply made a call to a cell phone or sent a text to someone who did not consent to receiving the call or text. As a result, the court concluded that “the TCPA cannot reasonably be read to render every smartphone and ATDS subject to the Act’s restrictions. . . .”
That same 2015 order also involved an equally unreasonable interpretation regarding reassigned cell phone numbers. Carriers regularly reassign cell phone numbers. The caller generally has no way of knowing that a carrier reassigned a cell phone number. So the caller may call a number that it once had consent to call but, because of the reassignment, consent no longer exists. To address this issue, the FCC implemented a one-time call safe harbor protecting the caller from a TCPA violation for the first call to the reassigned number. It refused, however, to provide any protection for subsequent calls, regardless of the caller’s knowledge or ability to know of the reassignment. The court found the FCC’s one-time safe harbor rule to be arbitrary and capricious.
While the D.C. Circuit set aside those two FCC interpretations, it upheld less controversial rulings regarding the method of consumer revocation of consent and the exemption for time-sensitive healthcare calls.