Updated: Apr 18, 2018

The U.S. Court of Appeals for the DC Circuit in ACA International v. FCC partially upheld and partially overturned an FCC Robocalling Declaratory Ruling and Order (2015) that sought to clarify Telephone Consumer Protection Act restrictions on using automated dialing devices to make uninvited calls. The three-judge panel upheld the Declaratory Ruling’s revocation approach, where parties can revoke their previously-provided consent using reasonable means clearly expressing a desire not to receive further messages, and sustained the FCC’s exemption for time-sensitive healthcare calls.

However, the panel set aside the FCC’s “effort to clarify the types of calling equipment that fall within the TCPA’s restriction,” finding that this approach “would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage, an unreasonably expansive interpretation of the statute.” It also vacated the FCC’s approach to reassigned calls to nonconsenting persons, which the FCC concluded violated the TCPA, apart from a one-call safe harbor regardless of caller awareness. The panel determined that the one-call safe harbor is arbitrary and capricious.

Chairman Ajit Pai and Commissioners each released statements on the panel’s unanimous verdict. Chairman Pai praised the court’s decision, stating that it “addresses yet another example of the prior FCC’s disregard for the law and regulatory overreach.” The Chairman also noted that the FCC will continue to pursue consumer-friendly policies on this issue and will maintain its approach to enforcement against spoofers and scammers. Commissioners O’Rielly and Carr agreed in separate statements, with O’Rielly disagreeing on the court’s decision to uphold the revocation issue and encouraging future review to align its decision with the Second Circuit’s approach. Commissioner Rosenworcel issued a statement as well, urging the FCC to take action against robocalls as soon as possible.

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