Collector - May 2018 - 50
ACA Wins Legal Challenge Against FCC's
TCPA Declaratory Ruling and Order
Victory for ACA as appeals court decision overturns the FCC's expansive interpretation of the TCPA.
By Karen Scheibe Eliason
CA International and
organizations from a wide variety
of industries secured a decisive
victory in March from the U.S. Court of
Appeals for the D.C. Circuit in its landmark
case, ACA International v. Federal
Communications Commission, et al.
Ruling 3-0 in favor of business industries,
the D.C. Circuit Court focused on the key
issues ACA presented in its challenge to the
2015 Telephone Consumer Protection Act
Declaratory Ruling and Order, including the
definition of an automatic telephone dialing
system (ATDS), the meaning of a "called
party" in the reassigned number context
along with the one-free-call exemption,
and the any reasonable manner approach to
revocation of consent.
ACA PREVAILS ON THE
INTERPRETATION OF THE ATDS
You can hear more about this
important decision at ACA
Insights Conference, which
will be held May 21-23 in
Washington, D.C. To register, visit
In the 2015 TCPA Order, the FCC expanded
its interpretation of the TCPA's ATDS as
equipment that has the capacity to store or
produce telephone numbers to be called,
using a random or sequential number
generator to dial the numbers.
While the term "capacity" is not defined
in the TCPA, the FCC interpreted capacity to
include not only the current capacity of the
dialer but also the future capacity, meaning
that if the dialing equipment can be modified
to dial in an automated way-even with the
addition of software that is not currently
owned by the calling party-the system
counts as an ATDS for purposes of the TCPA.
However, in a win for ACA, the D.C.
Circuit Court rejected and set aside the
FCC's broad definition of an ATDS.
Writing for the court, Judge Sri Srinivasan
observed that under the FCC's ruling, "all
smartphones qualify as autodialers because
they have the inherent 'capacity' to gain
ATDS functionality by downloading an app."
Ruling that the FCC "unreasonably and
impermissibly" interpreted the statute, the
appellate court concluded that "[t]he TCPA
cannot be reasonably read to render every
smartphone an ATDS subject to the Act's
restrictions, such that every smartphone user
violates federal law whenever she makes a call or
sends a text message without advance consent."
The D.C. Circuit Court did not, itself,
give an interpretation of the term "capacity"
in the statutory definition of an ATDS or a
specific explanation of which devices qualify
as an ATDS. However, Ajit Pai, the current
chairman of the FCC-where this issue will
likely next land-has made his thoughts
clear that "the TCPA has strayed far from
its original purpose; [a]nd the FCC has the
power to fix that." More specifically, Pai
believes that the statutory definition of an
ATDS should be limited to the equipment's
"present capacity," not to its potential capacity.
ACA SUCCEEDS ON INTERPRETATION
OF "CALLED PARTY" AND THE "ONEAND-DONE" RULE
In the 2015 TCPA Order, the FCC ruled
that the "called party" for purposes of
determining consent under the TCPA is the
"current subscriber" and not the "intended
recipient." It further ruled that where a
wireless phone number has been reassigned,
the caller must obtain consent from the
person actually reached.
However, since callers may have properly
obtained prior express consent from the
previous wireless subscriber and may not
know that the number has been reassigned,
the FCC created a "one free call" safe harbor
allowing callers to make one additional call