March 2, 2017

Companies Go to Court To Challenge FCC TCPA Ruling

Three companies are challenging in court the July 10 FCC declaratory ruling to clarify the Telephone Consumer Protection Act (TCPA) (see 1507130039). The Association of Credit and Collection Professionals (ACA) International said the ruling is “at odds” with the original act. The Professional Association for Customer Engagement (PACE) and Sirius XM Radio also filed petitions for review. ACA said the ruling created “tremendous new TCPA risks for businesses that contact consumers by telephone.” Considering the number of petitioners that sought relief, ACA said the “battle against the FCC’s interpretation of the TCPA is far from over.”

The order didn’t offer much clarity for the industry, said Melissa Bateman Fitzgerald, Gryphon Networks vice president-privacy consulting and legal counsel, so many organizations jumped to challenge it. Gryphon provides phone-based marketing compliance and sales intelligence solutions and will host a webinar about the declaratory ruling Tuesday at 1 p.m. Bateman Fitzgerald said the appeals make sense if someone reads only the dissenting opinions, but those opinions were broad and reactive — which is the norm for an election year. If someone were to read the whole decision, it isn’t as “awful” as the dissenting opinions make it seem, said Fitzgerald. “I think that some of these appeals were drafted before the ruling came down, so I think it’s a case of people being a little overreactive,” she said. “If you can work within the framework of the law, it’s not that much broader than what was already on the books.”

The day the FCC released the ruling, ACA immediately filed the first lawsuit seeking review from the U.S. Court of Appeals for the D.C. Circuit, the same court Sirius filed with. PACE filed with the 7th Circuit. PACE is a trade organization of advance companies that use a multichannel approach to engaging customers. The three petitioners in the TCPA review cases challenged the FCC ruling on the treatment of “capacity” within the definition of an “automatic telephone dialing system” under the TCPA; treatment of predictive dialers; and treatment of prior express consent, including of reassigned numbers, said ACA in a news release.

The order vastly expands the TCPA’s reach by sweeping in calls to wireless numbers made from equipment that lacks the present capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and “to dial such numbers,” said Sirius’ filing, which is identical to the one filed by PACE. The ruling improperly defines the term “called party” for purposes of the TCPA consent provisions as the “current subscriber (or nonsubscriber customary user of the phone)” rather than “intended recipient,” and gives callers only one call before holding them liable for calls made to numbers that, without the caller’s knowledge, had been reassigned to persons other than one from whom the caller had express consent, the filing said. The FCC didn’t comment.

The ruling provides some clarity on the FCC interpretation of the TCPA, ACA said. It also makes clear that the FCC intends to interpret the provisions of the TCPA very broadly in an effort to afford the greatest protections to consumers, the association said. This often may come at the expense of companies that are trying in good faith to reach existing customers and clients, or other interested parties, to provide, in most instances, direct or immediate assistance to the called party, ACA said. “These appeals present an important question about whether the FCC exercised its regulatory authority appropriately or if the agency has ignored controlling statute in order to expand the scope and reach of the TCPA in a way that Congress never intended,” ACA said. “Should an appellate court strike down the ruling, it could significantly narrow the FCC’s ability to regulate under the TCPA. But if an appellate court upholds the ruling, large and small businesses in the credit and collection industry and beyond could have to deal with even more TCPA lawsuits claiming violations of rule that’s impossible to follow.”

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