ACA Int'l v. FCC.

• Author: Kingston, Ali

885 F.3D 687 (D.C. CIR. 2018)

In ACA Int'l v. FCC (1), the United States Court of Appeals for the District of Columbia Circuit, granted in part and denied in part the petition for review by a number of regulated entities of a 2015 FCC order in which the FCC sought to clarify aspects of the Telephone Consumer Protection Act of 1991 (TCPA). (2) The FCC's order concerned the TCPA's general bar against using automated dialing devices to make uninvited calls. (3) This suit encompassed four issues regarding the FFC's order: (1) what automatic telephone dialing systems (ATDS) are subject to TCPA's restrictions, (2) whether the caller violates the act if the consenting party's wireless number has been reassigned to a party that has not provided consent, (3) procedures for a consenting party to revoke said consent, and (4) the TCPA's consent requirement for certain healthcare-related calls. (4) The D.C. Circuit upheld the FCC's approach on the last two issues and vacated the FCC's approach on the first two issues. (5)

Consumers have been subject to automated telemarketing calls and text messages that they have not wanted to receive for years. (6) Congress addressed this issue with the TCPA, which prohibits the use of certain ATDS absent consent from the party receiving the call. (7) The FCC issued a Declaratory Ruling and Order in 2015, which was at issue here, that addressed several petitions for rulemaking or requests for clarification on the TCPA. (8) The petitioners challenged the FCC's interpretation and implementation of the TCPA regarding ATDS. (9)

The FCC attempted to clarify that devices qualify as ATDS if the device's "capacity" includes the potential to function as an ATDS with a software modification. (10) If the FCC were to regulate every device with the potential to be an ATDS, any smartphone with the addition of certain software would qualify. (11) Under this approach, any uninvited text message or phone call from a smartphone would violate the statute. (12) The court found it unreasonable for the TCPA to render every smartphone an ATDS and therefore subject to the TCPA's restrictions. (13) Even if the FCC's ruling does not conclude that smartphones are ATDS, the reasoning does not satisfy APA arbitrary and capricious review. (14)

The TCPA allows for ATDS calls "made with the prior express consent of the called party." (15) The FCC allowed for one liability-free call after a number was reassigned under the concept that the caller had...