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to a reassigned wireless number without
incurring TCPA liability.
Yet the D.C. Circuit Court found the
FCC's "one free call" safe harbor arbitrary,
and setting this aside compelled it to also
set aside the FCC's treatment of reassigned
numbers as a whole.
The D.C. Circuit Court did not offer a
solution to the "reassigned number" and
"one-call" safe harbor problem. However,
the court noted that the FCC "is already on
its way to designing a regime to avoid" it by
creating a database to identify reassigned
numbers. And assuming a likely scenario
in which the issue of number reassignment
comes before the FCC, again, Pai has
previously endorsed the interpretation that
the "called party" in the statute refers to the
caller's expected recipient of the call.
THE D.C. CIRCUIT COURT LET
STAND THE FCC'S RULE ON
Although the D.C. Circuit Court ruled in
favor of ACA and against the FCC on two of the
three core areas of dispute, Pai, who dissented
from the 2015 TCPA Order, released a statement
in support of the decision: "Today's unanimous
D.C. Circuit decision addresses yet another
example of the prior FCC's disregard for the law
and regulatory overreach. As the court explains,
the agency's 2015 ruling placed every American
consumer with a smartphone at substantial risk
of violating federal law. That's why I dissented
from the FCC's misguided decision and am
pleased that the D.C. Circuit too has rejected it."
FCC Commissioner Michael O'Rielly,
the other dissenting vote on the 2015 TCPA
Order, echoed Pai's sentiment, adding:
"This will not lead to more illegal robocalls
but instead remove unnecessary and
inappropriate liability concerns for legitimate
companies trying to reach their customers
who want to be called."
Given the current leadership at the FCC
and Pai's and O'Reilly's recent statements, it's
unlikely the FCC will request the full slate of
judges on the federal appeals court for the
District of Columbia or the U.S. Supreme
Court to review the ACA Int'l decision. Instead,
based on Pai's sharp criticism of the 2015 TCPA
Order, it's more likely the FCC will engage in
future rulemaking that provides relief from
onerous TCPA requirements and protects
normal, expected and desired legitimate
business communications with consumers.
If you want to read more about the
most recent significant judicial decisions
involving the credit and collection industry,
ACA members can always find concise case
summaries at acainternational.org/industryadvancement-program.
Karen Scheibe Eliason is ACA International's
The federal appellate court upheld the
portion of the 2015 TCPA Order in which
the FCC ruled that "'a called party may
revoke consent at any time and through any
reasonable means'-whether orally or in
writing-'that clearly expresses a desire not
to receive further messages.'"
In affirming the FCC's approach, the
D.C. Circuit Court explained that callers
are not required to "adopt (opt-out) systems
that would entail 'undue burdens' or would
be 'overly burdensome to implement.'" In
addition, the court provided additional
guidance by advising callers to make
"available clearly-defined and easy-to-use
opt-out methods" to avoid TCPA liability.
The court also made clear that although
the 2015 TCPA Order precludes callers from
imposing unilateral revocation rules, it does
not limit contracting parties from mutually
agreeing on revocation procedures.
What the court's opinion means in
practical terms is that the FCC's consent
revocation rules, which have been on the
books since 2015, will remain on the books.
The only thing that changed is that these
particular rules have been affirmed by the
D.C. Circuit Court.