Summary
The D.C. Circuit reviewed the FCC’s 2015 Declaratory Ruling and Order addressing the Telephone Consumer Protection Act’s restrictions on calls made using automatic telephone dialing systems. The court upheld the FCC’s rules concerning revocation of consent and certain healthcare-related calls, but set aside its interpretations concerning the capacity of autodialers and calls to reassigned wireless numbers. The petitions for review were granted in part and denied in part.
Topics
Practice areas
Questions Presented
- Whether the FCC permissibly interpreted the TCPA's definition of an automatic telephone dialing system, including the meaning of equipment's statutory capacity and the functions an autodialer must be capable of performing.
- Whether the FCC's treatment of calls to wireless numbers reassigned from consenting subscribers to nonconsenting persons, including its one-call safe harbor, was lawful.
- Whether the FCC permissibly concluded that consent to autodialed calls may be revoked through any reasonable means clearly expressing a desire to receive no further messages.
- Whether the FCC acted lawfully in limiting its healthcare-related exemption from the TCPA's consent requirement to specified time-sensitive treatment-related calls.
Holdings
- The FCC's expansive interpretation of an autodialer's statutory capacity, which included potential functionality obtainable through software additions and apparently encompassed virtually all smartphones, was unreasonable and impermissible under Chevron step two.
- The FCC failed to provide a clear and reasoned explanation of which functions equipment must have the capacity to perform, including whether the equipment itself must generate random or sequential numbers, whether it must dial without human intervention, and whether the ability to dial thousands of numbers rapidly is required.
- The FCC permissibly interpreted the TCPA's reference to the consent of the called party to mean the current subscriber of the wireless number rather than the intended recipient or former consenting subscriber, but its one-call safe harbor was arbitrary and capricious.
- A called party may revoke consent to autodialed calls or texts at any time through any reasonable means, oral or written, that clearly expresses a desire not to receive further messages.
- The FCC lawfully limited its exemption from the TCPA's consent requirement to specified time-sensitive healthcare-treatment calls and excluded calls containing telemarketing, solicitation, advertising, accounting, billing, debt-collection, or other financial content.
Key quotations
“The TCPA cannot reasonably be 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.” (slip op. at 5)
“In short, the Commission’s ruling, in describing the functions a device must perform to qualify as an autodialer, fails to satisfy the requirement of reasoned decisionmaking.” (slip op. at 29)
“Having instead embraced an interpretation of the statutory phrase “prior express consent” grounded in conceptions of reasonable reliance, the Commission needed to give some reasoned (and reasonable) explanation of why its safe harbor stopped at the seemingly arbitrary point of a single call or message.” (slip op. at 39)
Factual background
Congress enacted the TCPA to address unwanted telemarketing and robocalls, including autodialed calls to wireless numbers without prior express consent. The FCC's 2015 order interpreted the statute's definition of an automatic telephone dialing system, addressed calls to numbers reassigned from consenting subscribers to nonconsenting persons, established standards for revoking consent, and exempted certain time-sensitive healthcare calls. The petitioners challenged each of those determinations, including the potential breadth of the FCC's autodialer interpretation and its one-call safe harbor for reassigned numbers.
Procedural history
The FCC issued a 2015 Declaratory Ruling and Order addressing petitions for clarification and rulemaking concerning the TCPA. Regulated entities and intervenors petitioned the D.C. Circuit for review of the agency's treatment of automatic telephone dialing systems, reassigned wireless numbers, revocation of consent, and healthcare-related calls. The court granted the petitions in part and denied them in part, setting aside the agency's autodialer and reassigned-number determinations while upholding its revocation and healthcare-call rulings.
Remand instructions
The court set aside the FCC's treatment of the definition and functions of an ATDS and set aside the agency's treatment of reassigned numbers as a whole. It upheld the revocation-of-consent standard and the scope of the healthcare-related exemption.