The D.C. Circuit on Friday issued its long-awaited decision reviewing the Federal Communications Commission's 2015 Omnibus Order construing the Telephone Consumer Protection Act, striking down key provisions of the order that defined when dialing equipment is considered an autodialer under the statute. The D.C. Circuit also overturned the provisions of the FCC order that allowed calling parties only one safe harbor call to a telephone number that had been reassigned to a new owner.
A broad coalition of businesses had appealed the FCC order seeking clarity regarding what constitutes an automated telephone dialing system (ATDS) under the statute and specifically challenged the FCC's definition of ATDS which swept into the definition any phone that could be modified in the future to become an autodialer. The FCC's expansive definition had done little to stem the continued flood of class action lawsuits under the TCPA.
In setting aside that part of the FCC's order, the D.C. Circuit found that the commission's interpretation would have subjected ordinary calls from smartphones to coverage under the act, an outcome that the court found to be "an unreasonable, and impermissible, interpretation of the statute's reach." The court further warned that "[t]he 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."
Separate from the "capacity" issue, the court also criticized the FCC's order describing how dialing equipment must function to qualify as an ATDS, finding that "the Commission's ruling, in describing the functions a device must perform to qualify as an autodialer, fails to satisfy the requirement of reasoned decision making."
The D.C. Circuit also vacated the commission's finding regarding calls made to a phone number that was previously assigned to a person who had given consent but was later reassigned to a non-consenting person. The FCC's Omnibus Order had determined that callers in those situations were allowed a one-call safe harbor but any subsequent call would violate the TCPA, regardless of whether the caller is aware of the reassignment. The appellate court called the one-call safe harbor rule "arbitrary and capricious," noting that the one call "might give the caller no indication whatsoever of a possible reassignment" and vacated the interpretation.
Finally, the D.C. Circuit upheld two components of the FCC's order. The court held that a party can revoke their consent to receive autodialed calls through any reasonable means. However, the court expressly noted that nothing in the FCC's order prevents parties from agreeing upon specific revocation procedures that must be followed to constitute a proper revocation. The appellate court also sustained the scope of the FCC's exemption for time-sensitive healthcare calls.
Read the D.C. Circuit's full opinion here.
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