Now that the D.C. Circuit Court has issued its long-awaited decision in the case of ACA International, et al., v. Federal Communications Commission (FCC), all parties are looking to what’s next. The main point of the Telephone Consumer Protection Act (TCPA) was to curb unwanted and illegal robocalls. ACA and others argued that the FCC’s 2015 Declaratory Ruling and Order went too far, setting unrealistic hurdles, and likely preventing legal and wanted calls. 

It is clear that today's FCC leadership holds a vastly different opinion about the TCPA and the 2015 Order than did the leadership under former Chairman Wheeler. FCC Commissioners released the following statements following last Friday’s decision. 

Chairman Ajit Pai

“Today’s unanimous D.C. Circuit decision addresses yet another example of the prior FCC’s disregard for the law and regulatory overreach.  As the court explains, the agency’s 2015 ruling placed every American consumer with a smartphone at substantial risk of violating federal law.  That’s why I dissented from the FCC’s misguided decision and am pleased that the D.C. Circuit too has rejected it. 

“Instead of sweeping into a regulatory dragnet the hundreds of millions of American consumers who place calls or send text messages from smartphones, the FCC should be targeting bad actors who bombard Americans with unlawful robocalls.  That’s why I’m pleased today’s ruling does not impact (and, in fact, acknowledges) the current FCC’s efforts to combat illegal robocalls and spoofing.  We will continue to pursue consumer-friendly policies on this issue, from reducing robocalls to reassigned numbers to call authentication to blocking illegal robocalls.  And we’ll maintain our strong approach to enforcement against spoofers and scammers, including the over $200 million in fines that we proposed last year.”

Commissioner Michael O’Rielly

“I am heartened by the court’s unanimous decision, which seems to reaffirm the wording of the statute and rule of law. This will not lead to more illegal robocalls but instead remove unnecessary and inappropriate liability concerns for legitimate companies trying to reach their customers who want to be called. In effect, it rejects the former Commission’s misguided interpretation of the law, inappropriate expansion of scope, and irrational view of reassigned numbers. While I disagree with the court’s decision on the revocation issue, I believe there is an opportunity here for further review in order to square it with the Second Circuit’s more appropriate approach.”

Commissioner Brendan Carr

“In the Telephone Consumer Protection Act (TCPA), Congress enacted provisions to help combat the unwanted robocalls that have become a far too common nuisance for far too many Americans. Unfortunately, the prior FCC exceeded the scope of the TCPA and reached a decision of “eye-popping sweep,” as today’s D.C. Circuit decision states. Rather than focusing our efforts on combatting illegal robocalls, the 2015 FCC decision opted to subject consumers and legitimate businesses to liability. Thankfully, the D.C. Circuit, in a unanimous decision, has now corrected that error. In the meantime, this FCC has elevated robocalls to our top enforcement priority, and we have already taken a number of important steps to combat those unlawful calls. Going forward, I welcome the chance to continue working with my colleagues and all stakeholders to ensure that our rules protect consumers and legitimate businesses while targeting unlawful scammers and robocallers.”

Commissioner Jessica Rosenworcel

“Robocalls are already out of control. One thing is clear in the wake of today’s court decision: robocalls will continue to increase unless the FCC does something about it. That means that the same agency that had the audacity to take away your net neutrality rights is now on the hook for protecting you from the invasion of annoying robocalls. It’s past time for the American public to get a serious response from the FCC—and a reprieve from the unrelenting nuisance these calls have become for so many of us.”

Commissioner Mignon Clyburn did not release an official statement.

Where do we go from here?

In this other article published on insideARM today, Eric Troutman notes,

"...for every TCPA question the D.C. Circuit answered its ruling raises many more. Indeed, Judge Srinivasan’s opinion poses at least a dozen specific questions back to the Commission to consider on remand. Unfortunately, therefore, we are all a long way from having final answers on most issues. [The good news is that with] Chairman Ajit Pai at the helm of the FCC, industry has very good cause to think that real TCPA change is on the horizon."

Meanwhile, on a related/parallel path, on Friday the FCC and FTC will jointly host a Policy Forum on Fighting the Scourge of Illegal Robocalls. They released the agenda yesterday.

The Joint Policy Forum is open to the public and registration is not required, but seating is limited.  Attendees are advised to arrive at least 30 minutes prior to the event to allow time to go through security. 

The Joint Policy Forum will be webcast on the FCC webpage at www.fcc.gov/live.


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