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ACA Int'l v. FCC

United States Court of Appeals for the District of Columbia Circuit

October 19, 2016, Argued; March 16, 2018, Decided

No. 15-1211


 [*691]   [**5]  Srinivasan, Circuit Judge: Unwanted robocalls are an all-too-familiar phenomenon. For years, consumers have complained to the Federal Communications Commission about automated telemarketing calls and text messages that they did not seek and cannot seem to stop.

Congress sought to address consumers' [***4]  concerns with undesired robocalls in the Telephone Consumer Protection Act of 1991. ] The TCPA generally prohibits the use of certain kinds of automated dialing equipment to call wireless telephone numbers absent advance consent. The Act vests the Commission with authority to implement those restrictions.

In this case, a number of regulated entities seek review of a 2015 order in which the Commission sought to clarify various aspects of the TCPA's general bar against using automated dialing devices to make uninvited calls. The challenges encompass four issues addressed by the agency's order: (i) which sorts of automated dialing equipment are subject to the TCPA's restrictions on unconsented calls; (ii) when a caller obtains a party's consent, does a call nonetheless violate the Act if, unbeknownst to the caller, the consenting party's wireless number has been reassigned to a different person who has not given consent; (iii) how may a consenting party revoke her consent; and (iv) did the Commission too narrowly fashion an exemption  [*692]   [**6]  from the TCPA's consent requirement for certain healthcare-related calls.

We uphold the Commission's approach to revocation of consent, under which a party may [***5]  revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller. We also sustain the scope of the agency's exemption for time-sensitive healthcare calls.

We set aside, however, the Commission's effort to clarify the types of calling equipment that fall within the TCPA's restrictions. The Commission's understanding would appear to subject ordinary calls from any conventional smartphone to the Act's coverage, an unreasonably expansive interpretation of the statute. We also vacate the agency's approach to calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The Commission concluded that calls in that situation violate the TCPA, apart from a one-call safe harbor, regardless of whether the caller has any awareness of the reassignment. We determine that the agency's one-call safe harbor, at least as defended in the order, is arbitrary and capricious.

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885 F.3d 687 *; 435 U.S. App. D.C. 1 **; 2018 U.S. App. LEXIS 6535 ***; 2018 Comm. Reg. (P & F) 18; 2018 WL 1352922


Prior History:  [***1] Consolidated with 15-1218, 15-1244, 15-1290, 15-1304, 15-1306, 15-1311, 15-1313, 15-1314, 15-1440, 15-1441. On Petitions for Review of an Order of the Federal Communications Commission.

In re Rules & Regulations Implementing the TCP Act of 1991 et al., 30 F.C.C.R. 7961, 2015 FCC LEXIS 1586 (F.C.C., July 10, 2015)


numbers, autodialer, caller, reassigned, dialing, Declaratory, exemption, smartphone, subscriber, functions, wireless, random, sequential, message, consumers, telephone, phone, restrictions, revocation, qualify, statutory definition, express consent, telephone number, safe harbor, Regulations, parties, one-call, reasonable reliance, healthcare-related, communications

Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Administrative Law, Judicial Review, Standards of Review, Abuse of Discretion, Arbitrary & Capricious Standard of Review, Deference to Agency Statutory Interpretation, Governments, Legislation, Interpretation, Civil Procedure, Appeals, Reviewability of Lower Court Decisions, Preservation for Review, Standards of Review, Communications Law, Public Enforcement, Orders & Hearings, Judicial Review, Reviewability, Standing, Medical Treatment, Patient Confidentiality, Medical Records Under HIPAA