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Ninth Circuit expands reach of the Telephone Consumer Privacy Act through broad definition of “automatic telephone dialing system”
On September 20, 2018, the U.S. Court of Appeals for the Ninth Circuit handed down a decision broadly construing the term “automatic telephone dialing system” in the Telephone Consumer Privacy Act (“TCPA”). Marks v. Crunch Fitness, Docket No. 14-56834. The court’s decision expands the coverage of the TCPA to modern direct marketing systems that contact customers through tailored—as opposed to random—telephone and text messages. The opinion is the latest in a series of court opinions and administrative rulemakings that have wrestled with the question of how to apply the TCPA to technological advances.
 
Confusion has reigned as to the scope of the TCPA both because the definition of automatic telephone dialing system (“ATDS”) is poorly worded, and because marketing communication technology has continued to evolve since the Act was passed in 1991. The Act provides that
 
(1) The term “automatic telephone dialing system” means equipment which has the capacity –

(A)  to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.

Businesses are generally forbidden from making calls using an ATDS, particularly telemarketing calls and calls to mobile phones, unless they previously obtained the appropriate level of consent from the recipient of the call.
 
Marks sued Crunch Fitness (“Crunch”) when it sent him three text messages after he joined the gym in 2012. The district court granted Crunch’s motion for summary judgment on the basis that its “Textmunication” web-based marketing and communication system did not constitute an ATDS. First, the system did not use “random” or “sequentially-generated” numbers. The numbers that the system used to send texts were either hand-entered by Crunch employees, submitted by the customers themselves through registration on the Crunch website, or gleaned from text messages sent to Crunch by potential customers. Second, the system did not send messages “automatically.” A Crunch employee had to operate the system by selecting a number or subset of numbers and drafting a message to those members, then directing the system to send the message. Some messages, like those offering special promotions, presumably went to a broad audience while others, such as appointment reminders or birthday greetings, were more tailored.
 
In reviewing the lower court’s summary judgment ruling, the Ninth Circuit confronted an extensive history of regulatory rulemaking and declaratory orders. Marketing technology has evolved from fax or phone call blasts sent to massive lists of truly random numbers to more targeted systems, and the FCC has tried to keep up by refining the definition of what counts as an ATDS. In 2003, it adopted a rule that equipment with the “capacity” to dial “random and sequential” numbers would constitute an ATDS even if it was not being used that way at the time. In its 2015 Declaratory Ruling and Order, the FCC clarified that the term “capacity” meant that it is sufficient that the equipment have the “potential to be configured” to dial numbers randomly or sequentially even when the equipment is not presently configured to do so. Under that definition, a system that dials from a stored list of numbers, like the Textmunication system, can still constitute an ATDS. Finally, the court noted that, at the time of the 2015 rulemaking, the FCC was asked to clarify what exactly the statute meant by “automatic” dialing. Did it mean a system that operated entirely without human intervention? The court noted that the FCC did not clarify that point in its 2015 Declaratory Ruling.
 
However, as the Ninth Circuit observed, none of the FCC’s prior rulings was controlling in the Marks case because, in June 2018, the D.C. Circuit struck down both the 2003 and 2015 FCC rules as overbroad, internally inconsistent, and unclear. ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018). That litigation arose from direct challenges from businesses and industry associations to the FCC’s rulings on various issues, including the FCC’s broad interpretation of the term ATDS. Thus, the task before the Ninth Circuit was to decide whether the Textmunication system was an ATDS based on the bare language of the TCPA itself, ignoring the prior fifteen years of FCC rulemaking. While the D.C. Circuit in ACA Int’l suggested that the FCC’s rulings amounted to overreach in many instances, the Ninth Circuit, ruling on a blank slate, adopted an interpretation of ATDS as broad as anything proposed by the FCC.
 
The court first held that the statute was ambiguous on its face as to whether targeted dialing of stored numbers, as opposed to numbers generated randomly or sequentially, was covered. It found the definition of ATDS ambiguous and turned to other provisions of the TCPA to glean Congress’s intent. It found that other provisions of the statute refer to the use of an “autodialer” in contexts that clearly refer to the dialing of specific identified numbers. For example, the Act allows use of an autodialer for calls made with “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A) (1991). Thus, the Act itself seems to acknowledge that an autodialer can be used in a way other than dialing numbers in a purely random or sequential manner. As a result, the Ninth Circuit held that a system can constitute an ATDS, and fall within the scope of the TCPA, if it has the capacity “(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically.” (Emphasis added.)
 
Second, the court held that the word “automatic” in the TCPA does not mean the system has to work without any human interaction. A system that is turned on, programmed, and directed by a human to dial numbers pursuant to a specific set of criteria still constitutes an “automatic telephone dialing” system within the meaning of the Act. Thus, because the “Textmunication system stores numbers and dials them automatically to send text messages to a stored list of phone numbers,” the court found that summary judgment was not appropriate. The district court’s ruling was vacated and the case remanded for further proceedings.
 
The Marks decision is contrary to a recent decision by the Third Circuit in Dominguez v. Yahoo, Inc., No. 17-1243 (June 26, 2018). In that case the plaintiff received numerous unwanted text messages from Yahoo after he was assigned a new cell phone number that had previously been assigned to a Yahoo customer who agreed to receive such texts. In that case, unlike Marks, the court held that plaintiff had to establish that the Yahoo text system had the capacity to generate numbers randomly or sequentially in order to constitute an ATDS. But the Yahoo system was anything but random. It was sending plaintiff the texts for a specific reason related to the account of the Yahoo subscriber who previously was assigned that number. As a result, summary judgment was affirmed. However, the Third Circuit’s opinion is far less thorough in its discussion of the definitional issues in the TPCA than the Ninth Circuit’s decision in Marks.
 
Conclusion
 
The Ninth Circuit’s construction of the term “automatic telephone dialing system” based on the bare language of the TCPA essentially achieved the same objective the FCC has been trying to achieve for years through rulemaking, i.e., to bring modern computer-driven targeted marketing and communications systems like Textmunication within the scope of the TCPA. For the time being, lower courts will likely choose between the Ninth Circuit’s broad interpretation and Third Circuit’s more narrow approach in deciding future cases. But, at some point in the coming year, the FCC is expected to issue a new rulemaking that will provide new guidance on the ATDS definition. While the Obama-era FCC may have been expected to adopt an interpretation similar to that adopted by the Ninth Circuit in Marks, such is not likely to be the case today. The FCC under the Trump administration is controlled by a more business-friendly Republican majority, and its Chairman, Ajit Pai, was a vociferous dissenter from the FCC’s 2015 Declaratory Ruling and Order. Accordingly, many predict that the FCC will adopt a far more circumscribed view of its authority and regulatory reach under the TCPA.
 
We will continue to follow and report on developments in this area. For more information, please contact a member of the Nixon Peabody TCPA Editorial Team.
Phone numbers change, but the risk of TCPA liability remains: The state of the law on reassigned numbers post-ACA International

The Telephone Consumer Protection Act (TCPA) requires a caller to obtain prior express consent from a “called party.” This seems straightforward enough in a world where telephone numbers are permanently assigned to a consumer. In reality, however, over 35 million phone numbers are reassigned to a new subscriber every year. Can businesses argue that the consent they received sticks with the phone number? If not, how can they know when a number has been reassigned? This post outlines FCC and D.C. Circuit guidance on these issues, and offers an analysis of future solutions proposed by the FCC to mitigate potential TCPA liability stemming from calls placed to numbers that have been reassigned to a new subscriber.

“Called party”

Under the TCPA, businesses are required to obtain express consent from “called parties.” Until recently, the FCC had not defined “called party,” and there were debates as to whether it refers to the intended recipient of the call or the current subscriber. The FCC’s Declaratory Ruling from 2015 comprehensively addressed the question of whether a caller placing a call subject to the TCPA to a number reassigned from a consumer who gave consent is liable under the TCPA. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7999 ¶ 71 (2015). The FCC clarified that the “called party” is the current subscriber and not the intended recipient of the call. Id. (“[T]he TCPA nowhere indicates that caller intent is relevant to the definition”). See also Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1250-52 (11th Cir. 2014); Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012). The D.C. Circuit recently upheld the FCC’s interpretation of the term in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

Defining “called party” as the current subscriber only scratches the surface of these issues and leaves businesses vulnerable to potential liability despite good faith efforts to obtain consent. The result is a great deal of uncertainty.  For instance, does a caller who misdials or calls a number he has no reason to believe has been reassigned risk liability under the TCPA? How can diligent callers learn whether numbers have been reassigned?

The Old Safe Harbor

Faced with the possibility of a strict liability structure for calls made to reassigned numbers even in good faith, the FCC crafted a limited safe harbor to protect a single call or text message sent post-reassignment. The FCC explained that callers “should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber.” 30 FCC Rcd. at 7999, 8009 ¶¶ 72, 90. Notably, while the D.C. Circuit upheld the FCC’s definition of “called party,” it invalidated this safe harbor (and the 2015 Declaratory Order’s treatment of reassigned numbers as a whole) in ACA International, finding that it was an “arbitrary and capricious” adoption of the FCC’s “reasonable reliance” approach to interpreting prior express consent. 885 F.3d at 692. Specifically, the Court asked, “why does a caller’s reasonable reliance on a previous subscriber’s consent necessarily cease to be reasonable once there has been a single, post-reassignment call?” Id. at 707.


Preventing Liability and Moving to a New Safe Harbor

There have been no subsequent cases or FCC policies interpreting the ACA International ruling or the Notice of Proposed Rulemaking. Therefore, given the uncertainty of the current climate, a caller must have practices and protocols to help identify reassigned numbers. In its 2015 Declaratory Order, the FCC listed a number of best practices to reduce the likelihood of a caller calling a reassigned number. Some examples of these practices include better protocols with customer service agents to maintain accurate contact information, proactively sending periodic requests to customers to update their contact information, and utilizing an autodialer’s ability to identify disconnected numbers using “triple tones.” 30 FCC Rcd. at 8007-08 ¶ 86. The FCC also suggested that parties could agree that the consenting party has an obligation to notify the caller of any number reassignment. Id. While a failure by the consenting party to satisfy his obligation would not preserve consent for TCPA purposes, the caller would have an opportunity to pursue other legal remedies against the consenting party for breaching their agreement. Id. at ¶ 86 n.302.

While these policies would help to reduce uncertainty with regard to reassigned numbers, they are not foolproof, and businesses risk potential liability despite good faith adherence to the FCC’s suggested practices. As a result, the FCC is exploring the adoption of a reassigned numbers database. Prior to the ACA International ruling, the FCC had issued a Second Notice of Inquiry to assess potential reassigned number database models. See 32 FCC Rcd. 6007, 6013 ¶¶ 16-19 (2017). In light of the D.C. Circuit’s endorsement, the database model, and invalidation of the safe harbor provision and reassignment rule, the FCC published a Second Further Notice of Proposed Rulemaking (FNPRM) on April 23, 2018. See Advanced Methods to Target and Eliminate Unlawful Robocalls, 83 Fed. Reg. 17631 (proposed Apr. 23, 2018); ACA International, 885 F.3d at 709 (stating that a database model has “greater potential to give full effect to the Commission’s principle of reasonable reliance.”).

The FNPRM focuses on two main issues: the creation of a new safe harbor and the implementation of one of three proposed database models. On the question of a safe harbor provision, the FCC asks how the ACA International decision might impact its ability to establish a safe harbor, and whether, and under what circumstances, a safe harbor should be adopted. 83 Fed. Reg. 17631 at ¶ 31. Specific questions posed by the FCC include how frequently a caller would need to check the database, and what kind of liability would be protected by this safe harbor.

With regard to the creation of a database, the FCC asks commentators to consider three models of reporting by voice service providers: 1) mandatory reporting to a single FCC database administered by a third party; 2) mandatory reporting to one or more commercially available data aggregators; or 3) voluntary reporting to one or more commercially available data aggregators. Id. at ¶ 32. The FNPRM focuses on three practical issues; namely, what information should be included and would be necessary for callers who choose to use a database, how to ensure that information is reported to the database, and how to make the information available to interested callers. Id. at ¶ 8. The comment period for the FNPRM closes June 7, 2018.

Going Forward

As TCPA cases continue to increase across the country, businesses making calls subject to the TCPA need to be aware of their potential liability and need to implement compliance policies as soon as possible that include policies around reassigned numbers. While the FCC is indicating that it intends to adopt a reassigned numbers database for callers to use to minimize their liability, significant practical questions remain with regard to both this potential prevention tool and to the possibility of a safe harbor. In this interim phase, that is from the time of the D.C. Circuit’s invalidation of the 2015 Declaratory Order’s treatment of reassigned numbers to the time when the FCC clarifies the issue by an updated Order, or by the announcement of a database, callers are advised to assess their current practices and to adopt as many preventative measures as possible to avoid potentially costly liability.

District court rejects serial TCPA plaintiff’s “call to action,” “opts-out” of class action, and provides helpful roadmap for text message compliance

The Telephone Consumer Protection Act (TCPA) remains a favorite vehicle for class action lawyers and opportunistic plaintiffs seeking a big pay day. Uncapped statutory damages of up to $1,500 per call or text can potentially result in eight or even nine figure damages awards. But federal courts are beginning to wise up to the fact that many plaintiffs and class actions lawyers are simply seeking a quick and easy pay day and are not truly serving any broader public interest against nuisance telemarketing calls. A recent decision by the U.S. District Court for the Eastern District of Louisiana in Reese v. Marketron Broadcast Solutions, Inc., 2018 WL 2117241 (E.D. La. May 8, 2018), is illustrative of a trend toward rigorous scrutiny of the allegations of a TCPA complaint and away from giving plaintiffs the benefit of the doubt.

 

The plaintiff, Renee Reese, is a serial TCPA plaintiff. In the span of a few weeks in 2017, she filed three TCPA lawsuits in the Eastern District of Louisiana, each seeking millions in damages on behalf of a class. In the Marketron case, Reese alleged she received unwanted text messages from Marketron after entering a contest to win free tickets to a Tinashe concert. Reese heard an ad on the radio inviting her to text “joyride” to an SMS short code owned by Marketron. She did so and Marketron sent her a text confirming her contest entry. The Marketron text also provided Reese with a link to buy Tinshe tickets and gave her the option to sign up for more chances to win free tickets by replying “POWER.”

 

Reese played along, texting “POWER” in response. Marketron then sent a second text stating:

 

Marketron Mobile Alerts on 68255: Reply Y to consent to rcv mktg msgs from POWER. 5 msgs/mo. Reply STOP=stop, HELP=help. Msg&DataRatesMayApply. Consent not required to buy goods/svcs.

 

Once again, Reese played along, replying “Y.” She then received several additional texts from Marketron over the course of the following 19 months. Some of those texts included opt-out instructions, but many did not. Tellingly, Reese did not elect to opt-out until five days after she filed her class action lawsuit.

 

After preliminary skirmishing, including an unsuccessful attempt to litigate her federal claims in state court, Reese’s claims boiled down to two theories. First, she argued that Marketron’s first text message violated the TCPA because it included advertising or telemarketing without obtaining her prior express written consent. Second, she argued that many of Marketron’s later messages violated the TCPA because they did not include explicit opt-out instructions. Even applying the plaintiff-friendly standard of review for motions to dismiss, the District Court flatly rejected both theories.

 

The District Court first rejected Reese’s contention that Marketron’s first text constituted advertising or telemarketing. The Court cited to the FCC’s guidance on “confirmatory” texts, which states that “a one-time text message sent immediately after a consumer’s request for the text does not violate the TCPA and our rules.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 8015 (2015). The FCC had specifically endorsed the “call-to-action” model employed by Marketron: “a consumer might see an advertisement or another form of call-to-action display and respond by texting ‘discount’ to the retailer, who replies by texting a coupon to the consumer.” Id. The retailer’s reply message is not telemarketing because the consumer “requests and expects to receive the on-demand text message promptly in response.” Id. Thus, such confirmatory response texts are permissible so long as it: “(1) is requested by the consumer; (2) is a one-time only message sent immediately in response to a specific consumer request; and (3) contains only the information requested by the consumer with no other marketing or advertising information.” Id. at 8016.

 

The Court was not bothered by the fact that the confirmatory text included a link to buy tickets. The Court stated that it could not be construed as “advertising the commercial availability . . . of [a] service” because Reese already knew about the availability of tickets to the concert (i.e., she had already heard the radio ad) and the text “related solely to the concert for which plaintiff desired free tickets and did not encourage the purchase of tickets for any other concert.” Reese, 2018 WL 2117241, at *5.

 

As further support for its ruling, the Court also concluded that Reese provided prior express consent to receive Marketron’s first text when she sent her initial “joyride” text. The Court held that when Reese “sent her initial text message to enter the contest for free concert tickets, she invited a one-time confirmatory response containing information related to that concert.” Id. at *6.

 

Reese did not fare any better on her opt-out theory. The Court cited the relevant FCC rule, 47 C.F.R. § 64.1200(b)(3), which requires that:

 

In every case where the artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line [or to other defined lines, including wireless lines], provide an automated, interactive voice and/or key press-activated opt-out mechanism for the called person to make a do-not-call request . . . [at the begining of the message] . . .

 

The Court noted that Reese had not alleged that she received an “artificial or prerecorded voice telephone message” from Marketron. Rather, she alleged that Marketron’s text messages did not include opt-out instructions. But, the Court recognized, the FCC opt-out rule does not apply to text messages, which are governed by a different set of TCPA rules that apply to autodialers. Those rules do not require opt-out directions.

 

The Court’s pragmatic, common-sense approach to its analysis of this case is illustrative of a growing trend in litigation. Courts seem to be showing less sympathy (and patience) for the crocodile tears of serial TCPA plaintiffs. In the past, courts might have been more inclined to favorably construe a TCPA plaintiff’s complaint in a manner that would avoid an early dismissal. For example, a more sympathetic court might have concluded that Reese’s allegation that the first text constituted telemarketing because it included a link for purchase of concert tickets was sufficient to survive a motion to dismiss. But courts today seem less inclined to give plaintiffs the benefit of the doubt, particularly when the profit motives of the plaintiffs and their lawyers are so obvious.

 

One final, but important, footnote. Although this District Court found that opt-out instructions are not required for text messages, businesses that send text messages to consumers are well advised to stick with their prior practice of including the “Reply STOP” instruction in text messages. For one thing, this issue has not been litigated in other federal courts in published decisions that we have seen. While the ruling seems correct, it is far from established law.

 

More importantly, providing consumers with an easy opt-out mechanism protects the business from another form of frequent TCPA litigator—the deceptive “opt-out” evader. Under FCC rules, a consumer may revoke previously provided consent “at any time and through any reasonable means” including orally or in writing. 2015 Declaratory Ruling, 30 FCC Rcd. at 7989-90. The D.C. Circuit re-affirmed this rule earlier this year in ACA International v. FCC, 885 F.3d 687, 709-10 (D.C. Cir. 2018). Some opportunistic TCPA plaintiffs have seized on the vagueness of this standard to attempt a stealthy revocation of consent in hopes that the business’s automated system will not recognize the opt-out. Such plaintiffs will often send lengthy opt-out texts that say everything but the magic word, “STOP” (e.g., “please take me off your contact list,” and “I want to confirm that I have been removed off your contacts”).

 

In Rando v. Edible Arrangements Int’l, LLC, 2018 WL 1523858 (D.N.J. Mar. 28, 2018), another practical-minded District Court rejected such a strategy. Because the retailer had provided an easy and immediate process to stop the messages (“Reply STOP”), the Court concluded that plaintiff’s long narrative opt-out responses were not reasonable. The D.C. Circuit has also suggested that this is the correct approach for analyzing opt-outs when it stated: “[i]f recipients are afforded [clearly-defined and easy-to-use-opt-out methods], any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might be seen as unreasonable.” ACA International, 885 F.3d at 709-10. In summary, it remains best practice to provide text recipients with an easy way to opt-out.

TCPA Update:  The state of the law on revoking consent to call
The Telephone Consumer Protection Act (TCPA) prohibits the use of automated telephone calls absent “prior express consent” from the called party. Obtaining “express consent” in the first instance is not overly challenging. In a 1992 Order, the FCC stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992). Since the 1992 Order, interpretations of “prior express consent” have narrowed slightly such that consent is effective only if it “relates to the same subject matter as is covered by the challenged calls or text messages.” Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1047, 1044-45 (9th Cir. 2017).
 
In the case of debtors and creditors, the FCC has interpreted “prior express consent” as being satisfied where the called party provides their wireless number in connection with an existing debt and the autodialed calls are made regarding that debt. The debtor need not have provided their number directly to the creditor; consent is satisfied if the creditor obtains the number from an intermediary. Moreover, the debtor does not have to provide the number for a particular purpose or specifically consent to autodialed calls. As long as the debtor consents to be called in connection with the debt, the “prior express consent” provision of the TCPA is satisfied. But, one may ask, is that consent eternal?

The TCPA is silent as to revocation of consent. However, a majority of courts have held that consumers may revoke their prior express consent.  See, e.g., Van Patten, 847 F.3d at 1047; Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013) (debtor could revoke consent under TCPA); Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (same). Most recently, in Ginwright v. Exeter Finance Corp., 280 F. Supp. 3d 674 (D. Md. 2017), the District of Maryland denied a creditor’s motion for summary judgment, finding that consent was revocable, and that the question of whether consent had been revoked was an issue of fact for the jury. Each of these courts—whether considering debtors or consumers in general—based their decision on three main ideas. First, revocable consent is consistent with the purpose of the TCPA. The TCPA is a remedial statute that was “passed to protect consumers,” and any silence or ambiguity should be construed in favor of consumers. Second, the common law concept of “consent” provides that it may be withdrawn.  Because the TCPA does not define consent, the common law meaning is instructive. Third, the FCC has ruled that under the TCPA, a consumer may revoke consent “at any time and through any reasonable means.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7996 ¶ 62 (2015).  Significantly, the D.C. Circuit recently upheld the FCC’s ruling with respect to revoking consent. ACA International v. FCC, 885 F.3d 687, 709 (D.C. Cir. 2018).
 
But concluding that consent is revocable is only half the battle. If consent is revocable, when is it effectively revoked? What are “reasonable means” for revoking consent? The FCC has said that consent may be revoked in “any manner that clearly expresses a desire not to receive further messages[.]” 30 FCC Rcd. 7961, 7996 ¶ 63 (2015). The recent decision in Ginwright is instructive. In that case, the plaintiff listed his phone number on a credit application as part of a car purchase. The application specifically provided consent to debt collection calls. But, after his loan became overdue, the plaintiff claimed that he expressly demanded, on five separate calls, that the creditor “stop calling [his] phone.”  The court found that where loan servicing records reflected that the debtor did not give affirmative consent to being called on multiple occasions, there was at least some support for his contention, and that if “a factfinder were to determine that Ginwright had revoked his consent, he could succeed on his TCPA … claims.” On the other hand, the Ginwright court denied the plaintiff’s motion to certify a class, finding that issues of consent and revocation of consent would be too individualized to resolve on a class-wide basis.
 
By contrast, in Van Patten, the Ninth Circuit upheld the district court’s grant of summary judgment, finding that the consumer did not revoke his prior express consent. There, the consumer argued that he revoked his consent to be contacted by a gym when he cancelled his gym membership. The court explained that “[r]evocation of consent must be clearly made and express a desire not to be called or texted,” and “no evidence in the record suggest[ed] that [the consumer] told Defendants to cease contacting him on his cell phone.” In short, the gym was not required to infer that the plaintiff’s cancellation of his gym membership was also meant to revoke his consent to receiving calls or texts from the gym.
 
It is clear from these decisions that the revocation must be expressly made. The means by which that express revocation is given, however, remains unclear. In ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the court upheld the FCC’s broad “any-reasonable-means” standard.  This leaves consumers with a wide range of options to effectively revoke consent—and leaves a potentially narrow path to summary judgment on the issue.
 
For businesses seeking to afford themselves more clarity and predictability when it comes to revocation of consent, there is at least one strategy available. While a business may not unilaterally impose a specific procedure for revoking consent, a business may enter into a bilateral agreement with a customer that includes an agreed-upon mechanism for revoking consent. As the D.C. Circuit observed in ACA International, nothing in the FCC’s rules prevents parties from agreeing upon revocation procedures. Id. at 710.
 
With the ball in the consumer’s court when it comes to revocation, it appears that callers will face heightened exposure to TCPA liability.  With this in mind, callers would be wise to heed the D.C. Circuit’s advice and avoid potential violations “by making available clearly-defined and easy-to-use opt-out methods” or by contractually agreeing to specific revocation procedures up front.
D.C. Circuit pushes back on FCC’s expansive TCPA view

Earlier today the D.C. Circuit issued a highly anticipated decision in a challenge to the July 10, 2015 Federal Communication Commission (FCC) Declaratory Ruling and Order (FCC ruling) that expanded the scope of the Telephone Consumer Protection Act (TCPA). Most critically, today’s decision scales back the expansive FCC ruling in two significant areas:  (1) the statute’s definition of an “automatic telephone dialing system” (commonly referred to as “ATDS” or “autodialer”) and (2) liability for calling “reassigned” telephone numbers. But the D.C. Circuit also upheld two aspects of the FCC ruling:  (1) reaffirming the FCC’s ruling that consumers can revoke consent to telemarketing by any reasonable means and (2) sustaining the scope of the FCC’s exemption for time-sensitive health care calls.

The FCC 2015 order

The FCC issued an omnibus Declaratory Ruling and Order in July 2015, significantly expanding the TCPA and making it more consumer-friendly. Among other things, the FCC broadened the definition of “autodialer,” created a one-call safe harbor for calls made to “reassigned numbers,” and allowed for broad revocation of consent by consumers. We concluded at that time that “the ruling largely comes down in favor of consumer interests and gives short shrift to business concerns.” For more detail about the FCC ruling, you can read our alerts on the July 2015 FCC order here and here.

The consumer-friendly approach of the ruling led to a significant increase in TCPA litigation as the burden on plaintiffs seeking to prove TCPA claims was significantly reduced. On the other hand, far from reducing the number of autodialed- and robo- calls, the FCC ruling appears to have had little effect in curbing bad actors.

D.C. Circuit decision

The D.C. Circuit struck down the FCC’s definition of “autodialer” and the FCC’s approach for liability when calling “reassigned numbers” while upholding the FCC’s holding for revocation of consent and the FCC’s approach to carving a time-sensitive health care call exemption.

Autodialer

For purposes of TCPA litigation, the FCC’s broad interpretation of the definition of an autodialer was the most significant issue before the D.C. Circuit. The TCPA defines “automated telephone dialing system” as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The FCC ruling held that the “capacity” of equipment includes not just its “present ability” but also “its potential functionalities” or “future possibility.” This expansive holding significantly increased the scope of the definition of an autodialer, seemingly sweeping in almost any modern telecommunications device. Under the FCC’s view, because a smartphone can be made to function as an autodialer with simple software modifications or by downloading an application, any ordinary smartphone is effectively an autodialer subject to the TCPA regulations because of that theoretical “capacity.” As a result, plaintiffs faced almost no hurdle in alleging a defendant utilized an autodialer.

The D.C. Circuit struck down the FCC’s broad definition of “autodialer” finding the commission’s interpretation of the term “capacity” to be “utterly unreasonable.” The court was extremely troubled by the fact, all but admitted by the FCC, that any smartphone could meet this definition and rejected the idea that Congress intended such an expansive interpretation. The D.C. Circuit was not persuaded by the FCC’s argument that in fact, the FCC ruling did not reach a definitive resolution on whether a smartphone qualifies as an autodialer, holding that, even if that were true, such lack of clarity (and logical inconsistency) would render the FCC’s ruling on this issue “arbitrary and capricious.” The court therefore set aside the FCC’s definition of “autodialer” and the FCC will now be tasked with issuing an updated ruling consistent with the decision.

The D.C. Circuit also took issue with the FCC ruling because the FCC seemed to suggest at different points in its ruling and in its briefing that equipment must itself have the functional ability to generate (that is, create) random or sequential numbers to be dialed, while at other points in its ruling suggesting that an autodialer need not generate its own numbers randomly or sequentially, but may simply dial numbers from a pre-existing list randomly or sequentially. The former scenario is most often viewed as what the TCPA was enacted to prevent—the completely random dialing of numbers (a carpet bombing approach to telemarketing). The latter scenario, however, is more typical of how telemarketers work today, calling targeted pre-identified numbers from a database. The D.C. Circuit suggested that either interpretation could be permissible, but it took issue with the FCC ruling to the extent that it failed to definitely pick one of these interpretations. While a decisive statement (from the court) that equipment simply calling from a previously-identified list of numbers does not run afoul of the TCPA would have been welcome news for callers (as discussed in more detail below) with a newly re-configured FCC set to issue a consistent ruling, we believe a more business-friendly decision remains possible down the road.

Reassigned numbers

The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing equipment or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A).

The FCC ruling held that the “called party” refers to the current subscriber of the phone number, not the intended recipient. With thousands of mobile phone numbers being reassigned every day, the FCC ruling created a compliance nightmares for businesses—a caller intending to call a consumer that had provided consent for the call may unwittingly call a different person if the previous consumer’s phone number was reassigned to a new person. Despite a business’s good faith efforts to obtain consent and only call persons who had given consent, reassignment of numbers creates a risk of TCPA liability that is difficult to avoid. The FCC ruling attempted to account for this issue by providing a one-call safe harbor, where the caller would be immune from liability for the first call after a number is reassigned. However, the FCC ruling held that after the first call, the caller would be charged with constructive notice of the reassignment and face liability for any subsequent calls—even if the caller did not have actual notice (for example, if the caller received no answer or was intentionally misled by the new subscriber to induce future calls in violation of the TCPA).

The DC Circuit, as an initial matter, agreed with the FCC that its interpretation of “called party” refers to the actual recipient of the call (the current subscriber to the phone number), not the intended recipient. However, the court found that the FCC provided no reasoning for limiting the “safe harbor” to one call and, therefore, the FCC ruling was deemed “arbitrary and capricious.” The D.C. Circuit noted the inherent inconsistency in the FCC’s reasoning where the FCC credited a caller’s “reasonable reliance” on the consent it had received for the first call after reassignment, but rejected the notion that a caller could continue to reasonably rely on the same consent for subsequent calls absent actual notice of the reassignment. The D.C. Circuit set aside the FCC’s treatment of reassigned numbers as a whole and indicated that the FCC should issue a ruling with more robust reasoning. As an aside, the court pointed out that the FCC is already on its way to designing a new system to avoid the problems of the FCC ruling’s one-call safe harbor by creating a comprehensive repository of reassigned numbers. In conjunction with that repository, the FCC is considering implementation of a new rule that would provide a safe harbor for businesses that consult that repository on a regular basis before making calls. It therefore seems likely that the FCC will craft a new rule that will give businesses a more realistic system for avoiding calls to reassigned numbers and that will be more effective at actually reducing the frequency of such unwanted calls while at the same time reducing potential TCPA liability for businesses.

Revocation of consent

While the TCPA is silent on revocation of consent, the FCC ruling held that consumers may revoke previously provided consent by “any reasonable means” including orally or in writing. The challenge to the FCC ruling argued that callers should be able to dictate the methods of revocation of consent.

The D.C. Circuit disagreed with petitioners and upheld the FCC ruling with respect to revocation of consent, holding that callers cannot unilaterally prescribe exclusive means for consumers to revoke consent. The court found that concerns about unique methods of revoking consent were overstated because the FCC ruling specifically absolved companies of adopting systems that would entail “undue burden” and revocation was still limited to “reasonable means.” Importantly, the court noted that neither the FCC ruling nor its decision affected bilateral contractual language that dictates specific methods for revoking consent.

Health care exemption

Finally, the D.C. Circuit reviewed the FCC’s narrow health care exemption. Pursuant to authority in the statute, the FCC had been petitioned to exempt from the consent requirement “certain non-telemarketing, health care calls” that provide “vital, time-sensitive information patients welcome, expect and often rely on to make informed decisions. In the FCC ruling, the FCC granted the petition but restricted it to “calls for which there is exigency and that have a health care treatment purpose,” including calls or texts regarding appointment confirmations, reminders, wellness checkups, hospital pre-registration instructions, pre- and post-operative instructions and lab results. The FCC did not extend the exemption to include telemarketing, solicitation or advertisement calls, or calls that include accounting, billing, debt collection, or other financial content.

The D.C. Circuit upheld the scope of this exemption against Rite Aid’s challenge. Rite Aid argued that the TCPA regulations conflicted with the regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPPA). The D.C. Circuit rejected this argument, finding that there is no obstacle to complying with both the TCPA and HIPPA as the two statutes “provide separate protections.” The D.C. Circuit also rejected Rite Aid’s assertion that the FCC’s line drawing on this exemption was arbitrary and capricious.

Looking ahead

This decision on the whole is welcome relief to businesses that call or text consumers. While not explicitly outlining any new rules, the D.C. Circuit provided instructions for the FCC to issue new rulings that will be narrower in scope than the 2015 ruling. The FCC will now revisit the questions of (1) the definition of “autodialer” and (2) reassigned numbers, and issue a ruling consistent with the D.C. Circuit’s decision. Since the ruling in 2015, we have had a change in administration. Republicans are now in control of the FCC with a three-to-two majority and Ajit Pai heading the agency as its chair. Those three Republican commissioners include two that dissented to the FCC ruling and those dissents will likely provide a roadmap for how the reconfigured FCC will rule. Notably, we anticipate a narrower definition of “autodialer” that is limited to “present ability” and perhaps even carve out equipment that simply dials telephone numbers from a previously created list of numbers. We also expect the FCC to continue to explore and implement a reassigned number registry that it has already begun to investigate and appears to have been explicitly endorsed by the D.C. Circuit. In the meantime, as we wait months or even years for new FCC guidance, we can expect courts across the country that are presently confronting TCPA litigation to look to the logic and reasoning in the D.C. Circuit decision. At a minimum, the FCC’s previous guidance on these issues is no longer persuasive authority in the courts, much less binding.

D.C. Circuit rejects FCC attempt to expand TCPA protections; junks “solicited fax rule”
On Friday, March 31, the federal court of appeals for the D.C. Circuit shook up the world of Telephone Consumer Protection Act (TCPA) jurisprudence by holding that a Federal Communications Commission (FCC) rule announced in 2006 was incorrect, and exceeded the agency’s authority. While the decision has an immediate impact on the (albeit, rapidly narrowing) world of facsimile advertisements, many are eagerly wondering if it signals forthcoming decisions that will further narrow the threat of liability under the Act.
 
The case was titled Bais Yaakov of Spring Valley et al. v. Federal Communications Commission et al.[1] The question before the D.C. Circuit concerned, at bottom, the FCC’s interpretation of the TCPA requirements for faxes sent by advertisers with the recipients’ previous consent. The TCPA allows for regulation of unsolicited faxes, permitting them only when 1) the sender and the recipient have an established business relationship, 2) the recipient’s fax number was obtained via its own public disclosure, and, of key importance here, 3) each fax contains an opt-out notice that complies with the statute’s requirements. The third requirement mandates that clear and conspicuous language offer the recipient a cost-free mechanism to request the cessation of any further messages. The penalty for non-compliance is strict: An individual or business can sue for at least $500 per violation of any of these provisions.
 
The FCC is authorized to issue regulations implementing the TCPA. In 2006, the FCC issued a rule applying the opt-out notice requirements not only to unsolicited faxes, but also to solicited faxes. This new “Solicited Fax Rule” has left many advertisers facing exorbitant penalties for sending a fax that, while the recipient had previously agreed to receive, did not strictly adhere to the opt-out notice requirements. Indeed, the petitioner in this case, a seller of generic drugs, was facing liability of $150 million for failing to include opt-out notices to its customers—customers who admitted they had expressly given the petitioner consent to send the faxes. The D.C. Circuit, pointing out the absurdity of such a situation with biting frankness, struck down the FCC’s rule.
 
First, the D.C. Circuit held that the Act’s “requirement that businesses include opt-out notices on unsolicited fax advertisements” does not grant the FCC authority to require the same notices on solicited faxes. The language of the Act focuses on, first, barring unsolicited advertisements from being sent over facsimile. Then, it presents the exceptions to that rule, one of which is a fax that (among other things) contains an opt-out notice. Nowhere, the court held, did the Act “require a similar opt-out notice on solicited fax advertisements.” Furthermore, it determined that no language in the Act itself grants the FCC authority to require opt-out notices on solicited fax advertisements.
 
Noting that it is not the Judiciary’s job to “redraw” the Act to place requirements on senders of solicited faxes, the court rejected the FCC’s position that it may create and enforce the Solicitation Rule “so long as Congress has not prohibited” it. The court found such a theory “backwards as a matter of basic separation of powers and administrative law.”
 
In addition, the court did not agree that the Solicited Fax Rule was allowable on the grounds that Congress has yet to define what actually constitutes “express permission” to send fax advertisements. It bluntly criticized the FCC’s reasoning that since “prior express permissions lasts only until it is revoked…all fax advertisements—even solicited fax advertisements—therefore must include a means to revoke that permission” as “difficult to follow.” Though the FCC can reasonably define the concept of “prior express invitation or permission” and may allow recipients to revoke such permission, the court opined, “what the FCC may not do under the statute is require opt-out notices on solicited faxes[.]” The case was remanded for further proceedings.
 
To fully grasp the unique nature of this decision, which may seem limited to a rather archaic form of communication, it is important to note how much FCC interpretation of the TCPA has guided its application over changing technology. FCC rulings in 2012 have been treated as amendments of the TCPA’s consent rules for fax, text, and telemarketing advertisements, and the 2015 FCC Declaratory Ruling and Order created an extremely broad and sweeping definition of an “autodialer” for TCPA purposes.
 
To the extent the court limits or reverses the FCC ruling by negating not only the substance of the rule but also the FCC’s authority to make it, this decision could be the harbinger of more change to come. In fact, the D.C. Circuit is currently considering another case, ACA International,[2] that could have a significant impact on the rules governing calls and texts to customers. Among other things, the petitioners in that case have challenged the FCC’s very broad definition of “autodialer.” If the D.C. Circuit discards deference to the FCC’s interpretations of the statute, it could bring about a sea change in this area of the law.
 
[1] Case No. 14-1234, U.S. Court of Appeals for the District of Columbia Circuit.
[2] ACA International v. Federal Communications Commission et al., No. 15-1211, (D.C. Cir.).
The uncertain future of the TCPA in the Trump era
During President Obama’s two terms, the Telephone Consumer Protection Act (TCPA) grew from an archaic and nearly forgotten relic of the early 1990’s 2G wireless era, to a muscular consumer protection juggernaut. The statute has become a favorite weapon for consumer class action lawyers, so much so that commentators have sardonically recast the statute’s acronym: “Total Cash for Plaintiff’s’ Attorneys.”[1]  But the winds of change are blowing: a Republican businessman sits in the White House, Congress remains firmly in Republican hands (for now), new Republican leadership has taken the helm at the Federal Communications Commission (FCC), and a business-friendly conservative has been appointed to fill the vacancy on the United States Supreme Court.

Trump’s commitment to deregulation
The election of 2016 may mark a pivot point with respect to the push and pull between consumers and businesses. An early centerpiece of President Trump’s agenda is rolling back what he deems to be government overreach. He has promised to revive the economy by removing regulatory impediments to business success and growth. While initial efforts have focused on immigration and health care reform, a rollback of broader consumer protections appears to be underway.

Only two weeks following his inauguration, President Trump signed the Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. Among other things, that order mandates that federal agencies must cut two regulations for every new one they wish to create. Less than a month later, he went a step further with the Presidential Executive Order on Enforcing the Regulatory Reform Agenda, which directs federal agencies to create task forces to identify burdensome regulations so that they can be brought to the chopping block.
President Trump’s outline for his proposed 2018 budget includes deep cuts to several federal departments and agencies known for their strict regulatory regimes aimed at protecting individuals against business interests, including the EPA and the Departments of Labor, Health and Human Services, and Housing and Urban Development.
More recently, in March of this year, President Trump signed an executive order rolling back President Obama’s regulatory efforts to slow climate change through restrictions on power plant emissions. Meanwhile, Republicans in Congress voted to repeal landmark internet privacy protections. The new legislation, which President Trump is expected to sign, overrules nascent FCC rules that were intended to protect the privacy of internet users. If the repeal becomes law, internet service providers will be able to sell browsing history to businesses without consumer consent.

It is likely these initial steps are only the beginning. At a White House signing ceremony on March 27, 2017, at which President Trump signed legislation rolling back some other Obama-era regulations, the president stated his intentions bluntly: “I will keep working with Congress, with every agency[] and most importantly, the American people, until we eliminate every unnecessary, harmful and job-killing regulation that we can find. . . . We have a lot more coming.”[2]

While TCPA reform has not yet been specifically mentioned as a Trump priority, it seems likely that the president and his political allies see the statute and the FCC’s rules as a governmental overreach that has created an undue burden on business. Indeed, given that Donald Trump’s campaign was itself sued for TCPA violations in 2016, it stands to reason that the new president is no fan of the statute.[3]

The growth of the TCPA makes it a likely Trump target

The TCPA, enacted in 1991, is a federal statute created to protect consumers from overzealous telemarketers using invasive mass telemarketing practices, such as “autodialers” (technology that stores and dials huge lists of phone numbers randomly or sequentially) and artificial or prerecorded voices (so called, “robocalls”).

Many of the issues that first prompted passage of the TCPA have, however, been ameliorated through smarter technologies and a shift away from mass marketing strategies. Notwithstanding these advances, FCC and court rulings have interpreted the TCPA in an increasingly expansive way. These rulings, coupled with the lure of uncapped statutory damages (as much as $1,500 for each call in violation), have encouraged consumer lawyers to file more and more TCPA claims. Class actions that can aggregate the claims of thousands of consumers can potentially be worth hundreds of millions of dollars—a tempting enticement for class action lawyers who ordinarily take home a percentage of that recovery.

The result has been an explosion of TCPA litigation. According to litigation analyst WebRecon LLC, only 16 plaintiffs nationwide filed TCPA claims in federal court in 2008.[4] That number climbed to 1,136 plaintiffs in 2012. Steady increases continued each year of Obama’s presidency, topping out at 4,860 TCPA claims in federal court by 2016. Because the TCPA is a strict liability statute and violations are relatively easy to prove, businesses facing potentially ruinous class action liability have been quick to settle claims with substantial payouts. For example, in just the past few years, Capital One settled a TCPA class action for $75 million, several cruise lines settled claims for $76 million, and AT&T and Bank of America settled cases for $45 million and $32 million, respectively.

Thus, the biggest factor driving increased TCPA litigation is most likely the lure of easy money for lawyers, rather than an increase in vexatious telemarketing practices. Not surprisingly, the business community has taken notice and has been lobbying the FCC and Congress to scale back the reach and impact of the TCPA. While those efforts have been largely unsuccessful, the landscape has shifted.

Looking ahead: likely challenges and efforts to reform the TCPA

The FCC implements the TCPA through its rulemaking and assists the courts in interpreting the TCPA through its rulings. But the FCC’s most recent rulings have only added fuel to the fire of TCPA litigation. The FCC’s 2015 Omnibus Declaratory Ruling and Order (FCC Order) further expanded the sweep and scope of the TCPA. Most significantly, it expanded the definition of “automatic telephone dialing system” (i.e., autodialer) to such an extent that the TCPA now arguably applies to nearly any modern telecommunications device (including smart phones). The FCC Order also included several other rulings and clarifications that generally favored consumer interests over business interests.[5] These rulings spurred a court challenge, which led to oral arguments before the D.C. Circuit in October 2016.[6] Many of the questions at oral argument indicated skepticism of the FCC’s interpretation of the TCPA, particularly the FCC’s broad definition of an “autodialer,” and hinted that the court may send the FCC back to the drawing board.[7] That decision remains pending.

Regardless of how the D.C. Circuit rules, the FCC may take a fresh look at the TCPA on its own initiative. The FCC Order was implemented under the former chairman of the FCC, Tom Wheeler, a Democrat appointed by President Obama. Chairman Wheeler stepped down in January of this year and President Trump immediately elevated Republican Commissioner Ajit Pai to the chairman position. Due to one other recent departure by a Democrat, the FCC, which is ordinarily directed by five commissioners, currently has two Republican commissioners to just one Democrat. With a Republican president making future appointments, the FCC will remain in Republican hands for at least four years.[8]

Pai’s appointment as the FCC Chairman is significant. In 2015, Commissioner Pai vigorously dissented from two of the more controversial aspects of the FCC Order, harshly criticizing the FCC’s interpretation of the TCPA. Pai believed the FCC Order dramatically expanded the TCPA’s reach, which he wrote was “sure to spark endless litigation, to the detriment of consumers and legitimate businesses that want to communicate with them.” Speaking of the abuses he saw in TCPA litigation, Pai observed that “in practice the TCPA has strayed far from its original purpose. And the FCC has the power to fix that.”
Since taking over as chairman, Pai has not yet publicly addressed the TCPA or any plans to curtail its reach, focusing his initial efforts in other areas. For example, Pai moved aggressively to roll back Obama-era consumer protection regulations designed to ensure equal access to the internet (so called “net neutrality” rules). But Pai’s sympathetic stance toward business interests, coupled with his 2015 dissent, strongly suggest that he will take steps to reform the FCC’s approach to the TCPA. Nevertheless, while Chairman Pai will bring a new perspective to the TCPA, he is unlikely to seek its wholesale destruction. Rather, Pai’s previous comments suggest he will seek to reform the regulations so that plaintiffs will be incentivized “to go after the illegal telemarketers, the over-the-phone scam artists[] and the foreign fraudsters[,]” rather than “legitimate, domestic businesses.”[9]

Indeed, reforming the TCPA is not a zero sum game, nor is it necessarily a partisan issue. Both Democrats and Republicans have constituents who resent invasive telemarketing. In recent years, there has been legislative activity in Congress both to strengthen the TCPA’s consumer protections and to reign in its excesses. Currently before Congress is the Help Americans Never Get Unwanted Phone Calls (HANGUP) Act. While HANGUP was authored by Massachusetts Democratic Senator Ed Markey, Republican Senator Michael S. Lee co-sponsored the bill. The bill strikes a provision of the Budget Act of 2015 that exempts from TCPA liability callers collecting debt owed or guaranteed by the federal government. The HANGUP bill illustrates that Democrats and Republicans may be able to work together to reform the TCPA so that it works for both consumers and legitimate businesses.
Although not directly addressed by the TCPA, a bill quietly introduced in February—the Fairness in Class Action Litigation Act of 2017—may have the greatest impact on TCPA litigation. Should this bill become law, it will enact wide-ranging changes to the procedural rules governing class and multi-district litigation. While the rule changes may seem technical and abstract to most lay observers, the practical results could be significant. In short, the various proposed revisions would make it much harder for plaintiffs’ lawyers to certify a class in federal court. Defense attorneys would be given a slew of new tools to defeat class certification, which would incentivize defendants to fight rather than settle and may discourage the filing of borderline suits. President Trump could be expected to sign the bill, which has already passed the House and is currently under consideration in the Senate.[10]

Finally, to the extent that any matters bearing on the TCPA, or the FCC’s authority to enforce it, end up before the Supreme Court, Justice Scalia’s successor may prove critical. The current unconfirmed appointee, Tenth Circuit Judge Neil Gorsuch, is an originalist in the tradition of his predecessor. His conservative judicial philosophy has caused him to rule in favor of business interests more often than individuals. In fact, commentators have remarked that Judge Gorsuch “has not hesitated to take stands that critics say have a partisan edge,” including by criticizing judicial activism and calling for “limiting the power of federal regulators.”[11]

Limiting the power of regulators is exactly what Judge Gorsuch proposed in a concurring opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). In the opinion, Judge Gorsuch challenged the doctrine that compels courts to defer to the rulings of federal agencies in certain circumstances—so called “Chevron deference.” Judge Gorsuch criticized the doctrine for allowing “executive bureaucracies to swallow huge amounts of core judicial and legislative power” and for “concentrat[ing] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In sum, his opinion strongly suggested that the time had come to discard deference to regulators. With ACA International currently pending before the D.C. Circuit Court of Appeals, Judge Gorsuch’s skeptical stance regarding federal regulators, such as the FCC, might prove decisive.

Conclusion
The Trump presidency is still in its infancy and the fate of the TCPA has yet to be discussed. But the tea leaves indicate that the TCPA is likely to get caught up as part of the new administration’s broad-based effort to deregulate. President Trump’s appointees to the FCC and the Supreme Court appear to have ideologies and philosophies that align with these goals. The precise contours of the changes that are coming remain to be seen. But interested businesses and individuals should stay tuned as TCPA reform appears inevitable.
 
[1] Adonis Hoffman, "Does TCPA stand for ‘total cash for plaintiffs’ attorneys’?", THE HILL (Feb. 17, 2016).
[2] Trump signs legislation rolling back Obama-era regulations, U.S. News & World Report, Mar. 27, 2017.
[3] See our previous article about the Trump campaign TCPA lawsuit here.
[4] See 2016 Year in Review: FDCPA Down, FCRA & TCPA Up, WEBRECON LLC (Jan. 24, 2017), available here.
[5] See our two prior alerts discussing the FCC Declaratory Ruling, Part 1 here and Part 2 here.
[6] ACA International v. FCC, 15-1211, (D.C. Cir. filed July 10, 2015).
[7] For more complete commentary on ACA International v. FCC, 15-1211 please see our coverage here.
[8] The president has the power to appoint commissioners, with confirmation by the United States Senate, to five-year terms. While only three commissioners may be members of the same political party, three is sufficient to constitute a majority.
[9] In re Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd 7961 (F.C.C. July 10, 2015).
[10] For more detail on the specific rule changes in the Act, please see our prior alert here.
[11] Adam Liptak, "In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style," N.Y. TIMES, Jan. 31, 2017.
Ninth Circuit rules that gym’s unwanted texts are a concrete injury, but dismisses TCPA class action because plaintiff consented

On January 30, 2017, the U.S. Court of Appeals for the Ninth Circuit held that promotional text messages sent by a gym franchise to a former member constituted a concrete injury, under the Telephone Consumer Protection Act (TCPA), for standing purposes. The ruling provides important guidance on Article III standing following the Supreme Court’s ruling last year in Spokeo, Inc. v. Robbins. While post-Spokeo rulings continue to differ from one case to the next, the Ninth Circuit takes a clear position that the invasion of privacy concerns, underlying the TCPA, mean that nearly any unwanted call, or text, sent in violation of the TCPA can constitute a “concrete” injury conferring standing to sue, even when the plaintiff does not suffer any actual financial harm. But the Ninth Circuit went on to affirm the dismissal of the certified class action because the lead plaintiff had consented to receive the texts, and he had never revoked that consent, even when he cancelled his gym membership.

The plaintiff in Van Patten v. Vertical Fitness Group, LLC, No. 14-55980 (9th Cir.), perhaps in anticipation of beach season, visited a Wisconsin Gold’s Gym franchise in March of 2009. He filled out a visitor card, listed his cell phone number, and then met with the gym’s manager and signed a membership agreement. The agreement contained the cell phone number that the plaintiff had provided. However, like many of us, the plaintiff had second thoughts days later and cancelled his membership during the grace period. He later moved to California.

Three years later, the gym franchise parted ways with Gold’s Gym and went through a rebranding process. The gym owners contracted with a marketing company to announce the gym’s new name (importantly, the actual ownership of the business remained the same). Plaintiff received two texts containing offers to rejoin the rebranded gym at a discount and enter a contest for a prize. Plaintiff declined these offers, and instead filed a class action against the gym and the marketing company. He alleged violations of the TCPA and California consumer protection statutes governing text communications with consumers. The district court ultimately certified the plaintiff’s class, but later granted the defendants’ motion for summary judgment.

The Ninth Circuit affirmed the lower court’s grant of summary judgment, despite the fact that a class had already been approved. But before the Ninth Circuit issued its decision, the Supreme Court of the United States issued the long awaited ruling in Spokeo, underscoring that “Article III standing requires a concrete injury even in the context of a statutory violation,” and that a plaintiff does not “automatically satisf[y] the injury-in-fact requirement” merely because a statute barring any given behavior is violated. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). While Spokeo reaffirmed the necessity of a showing of “concrete harm” in federal cases, it did not definitively settle the Article III standing confusion in the lower courts. In this case, the Ninth Circuit was still left to decide whether an unsolicited text message, by itself, could constitute a “concrete injury.” The Ninth Circuit agreed with the plaintiff that it could.

Reviewing the history and purpose of the TCPA, the Ninth Circuit first recognized that, “Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm.” VanPatten. Slip Op. at 10.The court noted that, unlike the alleged harm at issue in Spokeo (the misreporting of innocuous information in violation of the Fair Credit Reporting Act that arguably caused no harm to anyone), unwanted text messages by definition cause at least a minor invasion of privacy. As the court put it, “unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” Such unwanted invasions “present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA.” Id. at 11. Thus, a plaintiff alleging a violation of the TCPA need not allege any additional harm to have standing to assert his claim. Id.

The court reached a contrary result with regard to the plaintiff’s California claims. Under California’s Unfair Competition Law and/or False Advertising Law, plaintiffs are required to “establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and . . . show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” Id. at 21-22. Thus, a mere intangible invasion of privacy is not sufficient to establish harm under the California statutes. The Ninth Circuit agreed with the district court that the plaintiff had not come forth with any evidence to prove he had suffered any actual economic harm, and therefore the plaintiff lacked standing to bring the state law claims.

The court’s inquiry did not end with standing. Next the court examined whether the defendants could defeat the named plaintiff’s claim with the defense that he had actually given the gym express consent to contact him via text message. Completely negating the plaintiff’s claim, the court held first that the provision of the plaintiff’s phone number when he filled out the membership card constituted “prior express consent” to receive texts from his gym.[1] Adopting the reasoning used by the FCC in 2014, the court acknowledged that while provision of a cell phone number to a business does not constitute permission for that business to contact the customer about any and all topics, “transactional context matters in determining the scope of a consumer’s consent to contact”. Id. at 13. The court held that while providing one’s phone number to a gym in a membership application does not constitute consent to receive texts on any and all topics, it does constitute consent to receive text communications about membership opportunities. Id. at 13.

Next, the court held that since the lead plaintiff never expressly revoked his consent to receive such text messages, the defendants’ invitation to return three years after cancelling his membership was still within permissible bounds, under the TCPA. In reaching this decision, the Ninth Circuit acknowledged that the TCPA is not as clear as many would hope with respect to whether a party may revoke consent to be contacted, and is nearly silent as to what constitutes such revocation. Id. at 19.

Following FCC guidance issued in 2015, the court held that “consumers have a right to revoke consent, using any reasonable method including orally or in writing.” Id. at 19. The court held that the plaintiff, in this instance, did no such thing and rejected the plaintiff’s argument that cancelling the gym membership effectively revoked the gym’s authorization to call or text him at the number he had provided. The court ruled that because the plaintiff “did not clearly express his desire not to receive further text messages, he did not revoke his consent.” Id. at 20. Thus, while other recipients of the gym’s texts might have claims, the lead plaintiff in this case did not, and dismissal of the action was required.

The ruling in this case is significant for two reasons. First, it is one of the first rulings from a court of appeals on an Article III challenge post-Spokeo. It clarifies that an unwanted text solicitation confers standing, regardless of whether or not the recipient sustained a tangible harm, such as a loss of minutes, a higher cell phone bill, or another more individualized showing. This aspect of the ruling is a victory for consumer advocates. Defense attorneys have already complained that the Ninth Circuit’s ruling sets the standing bar too low by establishing a bright line test that will be extraordinarily easy for any TCPA plaintiff to meet.

Nonetheless, consumer-facing businesses can take heart in the second portion of the opinion, focusing on consent and what is required to revoke consent. The court defined a broad scope for what constitutes a consumer’s consent-to-contact. Any message that is sent to the consumer “in connection with” the reason the phone number was originally provided to the business is fair game. Additionally, the dismissal of the plaintiff’s claim underscores that merely leaving a gym, cancelling a library card, or ceasing to be a customer is not enough to put the business on notice that the customer has withdrawn consent-to-contact. Some type of further express communication is required to revoke consent. What constitutes sufficient express communication will remain to be seen as this area of law develops. Bottom line, consumer-facing businesses should carefully monitor any and all avenues by which customers may attempt to revoke consent. Reply texts that simply say “stop”, or verbal pleas to “stop calling me,” may be enough even if the customer does not follow a formalized “opt out” procedure. Indeed, while the TCPA requires that telemarketing calls and texts must provide a mechanism to allow consumers to quickly and easily “opt out” of receiving such calls and texts, the FCC continues to reiterate that consent may be revoked by “any reasonable means.” Moreover, businesses cannot limit the means for revoking consent by contract.


[1] Critically, the alleged conduct in this case took place before the Federal Communications Commission (FCC) issued an order that tightened restrictions on telemarketing calls by requiring “prior express written consent” for such calls. Accordingly, the Ninth Circuit applied the older, less stringent standard for establishing “prior express consent.” Under the new standard, a customer’s simple provision of a phone number does not equate to consent to send telemarketing calls or texts to that number. Rather, a customer must expressly agree to receive  telemarketing calls sent via an autodialer. Under the new standard, it would have been much more difficult for the defendants to establish consent.

D.C. Circuit poised to issue precedential ruling in 2017 that may significantly impact TCPA's reach
The new year may bring big changes for cases brought under the Telephone Consumer Protection Act ("TCPA"). Among other things, a new, presumably more business-friendly, administration is settling in the White House,[1] legislators in Congress remain dissatisfied with the broad scope of the TCPA and may seek to rein it in, and the United States Court of Appeals for the D.C. Circuit is poised to issue an important ruling in a case that could significantly cut back on a recent consumer protective ruling by the Federal Communications Commission ("FCC" or "Commission"). In particular, based on questions at oral argument, the D.C. Circuit could rule, in sharp contrast to FCC precedent, that the TCPA does not apply to any manually-dialed calls and text messages even when they are placed using equipment capable of autodialing.
 
The case, ACA International v. FCC, 15-1211, is a consolidated appeal of the FCC’s 2015 Omnibus Declaratory Ruling and Order ("Order"), which interpreted several key aspects of the TCPA. The TCPA is a federal statute, enacted in 1991, that protects consumer privacy from businesses using mass telemarketing methods, such as autodialers (technology that can store and dial lists of phone numbers randomly or sequentially) and artificial or prerecorded voices. The statute and rules, promulgated by the FCC, generally forbid the intrusive use of these automated technologies, absent an applicable exception or the express consent of the receiving party. But, as the D.C. Circuit recognized during arguments, the previously TCPA-regulated technologies have been replaced by new technologies and methods. The FCC has attempted, through its rulings interpreting the TCPA, to modernize the TCPA and prevent it from becoming obsolete. The question remains, however, whether the FCC has stretched its reach beyond the authority granted to it by statute.
 
The FCC’s Order bolstered consumer privacy protections in several important ways including: (1) construing the definition of the term “automatic telephone dialing system” ("ATDS" or "autodialer") to include any equipment that has the potential future capacity to autodial numbers, regardless of whether the equipment has the present capacity; (2) recognizing that the TCPA allows consumers to revoke consent to receiving automatic dials “[a]t any time and through any reasonable means”; (3) ruling that callers are liable for robocalls, even where consent had been given to call a particular number, where the number has been reassigned to a new subscriber who has not consented; and (4) allowing Health Insurance Portability and Accountability Act ("HIPAA")-protected calls to cell phones to be made without consent only when the call has exigency and a healthcare treatment purpose.
 
The Order has been met with heavy resistance from consumer-facing businesses and industry associations. Subsequent to its issuance, several organizations challenged the Order in court. Subject to certain restrictions, the Administrative Procedures Act ("APA") allows for a party to seek judicial review of an agency order and, in certain instances, allows for them to take their challenge directly to the United States Court of Appeals. See 5 U.S.C. § 706 (2017); 47 U.S.C. § 402 (2017). Many such challenges were consolidated into the currently-pending ACA International case, which raises, among other things, the four issues described above.
 
The D.C. Circuit is apparently taking the challenges seriously as evidenced by the fact that the Court allowed oral arguments to exceed two-and-a-half hours, well beyond the forty minutes originally allotted for the arguments. The judges focused much of their attention, drilling down, on the definition of an ATDS. Counsel for the petitioner stressed that the TCPA was not designed to “[b]an valuable targeted informative communications made with equipment not capable of generating random or sequential numbers” and argued that the Order impermissibly expanded the autodialer definition. The statute currently defines an ATDS as any “[e]quipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” 47 U.S. Code § 227(a)(1) (emphasis added). The Order, however, expanded the scope of the term through its interpretation of the word “capacity.” Under the FCC’s interpretation, Congress used “capacity” because it intended the definition to broadly encompass both the present and potential future capability of the dialing equipment. See FCC 15-72 at 7971–76.
 
Petitioners argued that such an expansive definition conceivably includes all smart phones capable of storing telephone numbers and of downloading an app or other software that can dial those numbers randomly or sequentially. Despite the FCC’s assurances to the contrary, the Order clearly states that “[d]ialing equipment generally has the capacity to store or produce, and dial random or sequential numbers (and thus meets the TCPA’s definition of “autodialer”) even if it is not presently used for that purpose, including when the caller is calling a set list of consumers.” Id. at 7971–72.
 
Judge Srinivasan asked, “If there were a smart phone that could download an app that would give the smart phone the capacity to be an ATDS, would you consider the phone to satisfy the statute in terms of capacity?” Petitioners’ counsel responded “yes”, the FCC would consider such a phone to be an ATDS, “[b]ecause that device would have the current capability to be an ATDS.” Judge Srinivasan probed further as to a distinction, under the statute, between a smart phone that has an autodialer app downloaded and installed, and a smart phone capable of doing the same, but has not presently done so. Petitioners responded that the FCC’s Order does not currently distinguish between the two — both are autodialers according to the FCC.
 
Judge Edwards displayed even greater skepticism of the FCC’s position. He wanted to know “[w]hat happens if a person or an institution makes a non-robocall using a device that only has the potential, but not the current, capacity to robocall.” Petitioners answered that, under the Order, such a device is considered an autodialer. Moreover, if such a device were used to send calls or text messages manually (i.e., not using the autodialing feature of the equipment), those calls or texts would violate the TCPA if they were sent without consent because the equipment has the “capacity” to be used as an autodialer. Judge Edwards did not approve of this answer, bluntly stating, “That’s not what the statute says.” Judge Edwards chastised the petitioners for conceding their strongest argument — that the TCPA does not apply to manual calls of any kind no matter what kind of device is used or what capacity it has for autodialing. Rather than focusing on the autodialer definition, Judge Edwards focused on the statute’s prohibitory language, which only forbids “using” an automatic telephone dialing “system.” According to Judge Edwards, merely using equipment that is capable of autodialing cannot constitute a TCPA violation if the autodialing functionality is not employed. Repeatedly, throughout the course of the arguments, Judge Edwards reiterated that the TCPA’s prohibition is not concerned with the equipment, but only the “use” of equipment to make automated calls.
 
During the FCC’s argument, the FCC’s lawyer contradicted Judge Edwards’s interpretation of the statute, noting “[t]he general understanding of everyone as the premise for this Order” that the TCPA “[a]pplies when you are using a device which is an autodialer, whether or not at that time the device is configured as an autodialer, or whether it is being used that way.” This drew the ire of Judge Pillard, who asked: “[W]hy would that be your position? . . . What interest does Congress have and does the Commission have in subjecting me to strict liability for using my smartphone on Sunday to call my parents when I’m plugging it into an ATDS the rest of the week . . . for autodialing?” The FCC conceded that, if applied broadly, that would be the case, but the Order is primarily concerned with catching calls made purposefully from an autodialer using the capacity to autodial. In essence, the FCC appeared to argue that the statute would not be applied so broadly in practice, but conceded that it could be.
 
The Court also reviewed the issue of whether consumer consent attaches to the phone number or to the person that gave the consent. The question presented is whether consent is lost when the number to which the consent had originally attached is later reassigned to a new subscriber (unbeknownst to the caller) who has not given consent. The petitioners argued that, in order for consent to be reliable, the statutory terms “prior express consent” and “called party” necessarily must be read together. The petitioners asked the Court to interpret the term “called party” to mean “expected recipient” of the call, in order to safeguard callers against liability for innocently, but mistakenly, calling a wrong number, such as where a phone number has been reassigned without any notice to the caller.
 
The FCC downplayed the risk of such calls by pointing to the FCC’s “safe harbor” rule. Under that rule, a caller gets one free bite — one call can be made in error to a number that has been reassigned to a new person. After that, the calling party is presumed to have constructive notice, and any call without proper consent from the new subscriber is a violation of the TCPA. The petitioners argued that rule is inadequate; for, in many instances, consumers will not answer the first call, are not present, or purposely do not answer when they do not recognize a number. In such cases the calling party never obtains actual knowledge that the phone number has been reassigned. The FCC rule places all of the risk on the caller. The Commission was adamant that, in order to facilitate the purposes of the statute, any risk, in such cases, should be born by the caller and not the consumer for whom the statute was designed to protect.
 
Another major aspect of the Order is that it makes consent (one of the primary defenses available under the statute) far easier to revoke. This is meaningful because the TCPA is currently silent as to whether revocation is possible. Despite that silence, the Order explicitly allows for a consumer to revoke their consent by “any reasonable means.” Simultaneously, the Order prohibits callers from conditioning or restricting the manner by which a consumer might revoke their consent. Petitioners argued that the FCC failed to establish any standardized and workable method of revoking consent and thereby placed an undue burden on callers. Interestingly, the Order lays out several different examples for how a consumer might revoke their consent. But the Court was critical in its questioning of the FCC. Judge Edwards and Judge Srinivasan commented on the impracticality of the rule for businesses. The Court expressed concerns that the Order may have a chilling effect on businesses seeking to communicate with consumers they would otherwise have the right to communicate with.
 
The Court also took up the issue of whether certain communications exempt under HIPAA should be considered exempt under the TCPA. Counsel for Rite Aid, one of the petitioners, addressed the Court, arguing that, as a result of the Order, certain valuable communications were being stifled and not received by consumers. The bench was skeptical of this point, questioning the petitioners as to the nature of the communications at issue. Some of the communications that the petitioners argued should not be covered by the TCPA included HIPAA compliant communications pertaining to alternate forms of treatment. The bench seemed to suggest that such communications amounted to marketing communications and, therefore, correctly fell within the scope of communications that the TCPA was designed to protect consumers from.
 
The D.C. Circuit is likely to render its judgment in this case sometime in 2017. While it is often difficult to predict how a court will rule, in this instance, the Court sent strong signals on some of the critical issues it is considering, especially with regard to the scope of the definition of autodialer. Judge Edwards, in particular, appears to disfavor an interpretation of the TCPA that would render liability for manual dialing from any devices, regardless of their capacity to be used as an autodialer. If Judge Edwards’s interpretation of the statute prevails on the three-judge panel, the D.C. Circuit’s ruling could upend years of FCC precedent. Long before its 2015 Order, the FCC has proceeded with the assumption that TCPA liability can lie for any call made using an autodialer, regardless of whether the autodialing capabilities were actually employed. As noted above, the Court also vigorously questioned the FCC with regard to its rulings relating to consent — whether the reassignment of a number terminates consent and whether and how consent can be revoked by a consumer. Overall, the Court’s tone did not indicate a high degree of deference to the FCC and its interpretation of the TCPA. Thus, it remains possible that the Court could issue a ruling that significantly curtails key aspects of the FCC’s Order.
 
We will continue to follow this case closely and will report when the D.C. Circuit issues its decision.
 
[1] Indeed, as we reported here, Donald Trump’s campaign committee was sued for TCPA violations. It stands to reason that the new president is no fan of the TCPA.
Ninth Circuit hears oral argument in TCPA class action
On December 6, 2016, the Ninth Circuit Court of Appeals heard oral argument in the case of Jordan Marks v. Crunch San Diego, LLC—a purported class action lawsuit filed under the Telephone Consumer Protection Act (“TCPA”). The case may clarify the definition of an “Automatic Telephone Dialing System” under the TCPA, and provide additional guidance to consumer-facing businesses seeking to avoid the threat of costly class action litigation under the TCPA.

The TCPA prohibits, among other things, calls to a consumer’s mobile phone using an “Automatic Telephone Dialing System” without the prior express written consent of the consumer. [1] Since its implementation in 1991, the statute has been interpreted broadly to extend to other methods of mobile communication, including text messaging.   Broad interpretations of the statute’s reach by courts and the Federal Communications Commission (“FCC”), coupled with uncapped statutory damages that range from $500 to $1,500 per violation, has led to a flurry of class action filings against consumer-facing businesses in recent years. [2]

The Marks case turns on the definition of an “Automatic Telephone Dialing System” (“ATDS”) under the TCPA. Under the statute, an ATDS is defined as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Plaintiff filed suit based upon his receipt of three unwanted promotional text messages from a Crunch Gym franchise. [3] According to the plaintiff, the messages were sent using an ATDS because the text messaging platform used by the defendant had the potential capacity to store, produce, or call randomly or sequentially generated telephone numbers. The plaintiff argued, both at the District Court level and on appeal, that this interpretation meshes with the FCC’s broad interpretation of the statute. In its July 2015 Omnibus Declaratory Ruling and Order (“Declaratory Ruling”), the FCC ruled that the term “capacity” in the statute includes both the present and future potential capability of the dialing equipment. Thus, software-controlled equipment with no present ability to function as an ATDS may still be considered an ATDS, under the FCC’s interpretation, if it is possible to reconfigure the software to allow the system to be used as an ATDS. [4]
    
The District Court rejected the plaintiff’s argument, holding that the FCC’s interpretation of the statute was not binding on the District Court, and that the FCC lacks authority to change the statute’s definition of an ATDS. [5] Under the Court’s reasoning, allowing the definition to envelope devices with only the potential capacity to call randomly or sequentially generated telephone numbers would lead to absurd results, such as subjecting all smartphone and computer users to potential liability under the TCPA. [6]

At oral argument, the Ninth Circuit panel seized upon the District Court’s reasoning, inquiring whether the plaintiff’s proposed definition of an ATDS would apply to smartphones. Plaintiff’s counsel conceded that it would, and argued that this is what the FCC intended in its broad interpretations of the statute. Plaintiff’s counsel noted that telemarketing companies no longer use the same autodialing technology (random and sequential number generators) that they had used when the TCPA was enacted in 1991. To require the use of a random or sequential number generator would effectively “eviscerate” the TCPA, Plaintiff’s counsel argued. This argument caused the Court to inquire that perhaps Congress designed the TCPA to remedy a specific problem and “now that problem has gone away.” But while the panel seemed hesitant to accept the FCC’s broad interpretation of the statute, it also appeared skeptical of Defendants’ claim that the FCC did not have the authority and intention to expand the definition of an ATDS in its statements on the matter. [7] The Ninth Circuit questioned whether this appeal was the appropriate method for challenging the FCC’s interpretation of the statute.  Indeed, the Ninth Circuit judges questioned whether they should wait for, and ultimately defer to, the D.C. Circuit Court of Appeals’ forthcoming ruling in ACA International v. FCC, Case No. 15-1211.

The D.C. Circuit Court of Appeals heard oral arguments in ACA International in October 2016. That case presents a direct challenge to several aspects of the FCC’s July 2015 Declaratory Ruling, as opposed to an appeal in a particular litigation. [8] The petitioners in ACA International are seeking to overturn several parts of the FCC’s Declaratory Ruling, including its broad interpretation of ATDS. At least one D.C. Circuit judge on the three-judge panel was clearly opposed to the FCC’s interpretation of the statute. Judge Edwards flatly rejected the notion that a defendant could be held liable for using a dialing system with the capacity of an ATDS if the defendant only placed calls manually. While the other two judges were somewhat less blunt, their questions also hinted that the D.C. Circuit may not fully accept the FCC’s extraordinarily broad interpretation. [9]
             
While it is impossible to predict how the Ninth Circuit will rule on this issue, its decision (which may very well be interlinked with the D.C. Circuit’s decision in ACA International) is likely to produce much-needed guidance on the scope of the TCPA moving forward. A ruling that the  TCPA applies only to devices with the present—as opposed to merely the potential—capacity to store, generate, and dial consumers’ telephone numbers could greatly limit businesses’ exposure under the statute. Regardless of the outcome, however, the case highlights the dynamic nature of the law governing the TCPA, and it further underscores the continuing need for consumer-facing businesses to ensure that they are TCPA-compliant when contacting consumers directly. While the FCC’s broad interpretation of the statute has been strongly criticized, it remains in the books for now.
 
[1] See 47 U.S.C. § 227(b)(1).
[2] See What is the TCPA?, TCPA Info, News & Insights, http://web20.nixonpeabody.com/tcpa/pages/tcpa-faqs.aspx.
[3] Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288, 1289 (S.D. Cal. 2014).
[4] See Troy Lieberman and Dan Deane, FCC’s extensive declaratory ruling on TCPA heightens risks and obligations for businesses, TCPA Info, News & Insights (July 20, 2015), http://web20.nixonpeabody.com/tcpa/Pages/TCPA_News.aspx?ID=24&Title=FCC’s+extensive+declaratory+ruling+on+TCPA+heightens+risks+and+obligations+for+businesses.
[5] Marks, 55 F. Supp. 3d at 1291-92.
[6] Id. at 1292.
[7] Video of the Ninth Circuit oral argument can be viewed at: http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010659.
[8] Under the Hobbs Act, the federal court of appeals has exclusive jurisdiction to determine the validity of all final orders of the FCC. The Hobbs Act directs that any party aggrieved by a final order of the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry.
 
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