ACA International v. FCC (D.C. Cir. 2018)

The short version

The D.C. Circuit reviewed a 2015 order of the Federal Communications Commission (FCC) interpreting the Telephone Consumer Protection Act (TCPA). The court set aside the FCC's broad reading of what counts as an autodialer and its approach to calls to reassigned numbers, including the one-call safe harbor. The court upheld the FCC's rule that a person may revoke consent by any reasonable means, along with the FCC's exemption for certain time-sensitive healthcare calls.

Background

In July 2015, the FCC issued an omnibus Declaratory Ruling and Order (FCC 15-72) responding to many TCPA inquiries and questions. A group of businesses and trade associations, led by ACA International, petitioned for review. The petitions raised four issues:

1. The types of automated dialing equipment that fall under the TCPA's definition of an "automatic telephone dialing system."
2. Whether calling a wireless number that has been reassigned to someone else who has not consented violates the TCPA, when the caller does not know about the reassignment.
3. The manner by which a person may revoke consent.
4. Whether the FCC's exemption for certain health care-related calls was drawn too narrowly.

What the court decided

Judge Srinivasan wrote the opinion for a unanimous panel that also included Judge Pillard and Senior Judge Edwards. The court granted the petitions in part and denied them in part.

• Autodialer definition: set aside. The court said the FCC's understanding "would appear to subject ordinary calls from any conventional smartphone to the Act's coverage, an unreasonably expansive interpretation of the statute."
• Reassigned numbers: set aside. The FCC had said that calls to a reassigned number violate the TCPA, apart from a single call allowed under a safe harbor, whether or not the caller knows about the reassignment. The court held that the one-call safe harbor, at least as defended in the order, was arbitrary and capricious. Because the court could not be sure the FCC would have kept the rest of its approach to reassigned numbers without the one-call safe harbor, it set aside the FCC's treatment of reassigned numbers more generally.
• Revocation of consent: upheld. The court sustained the FCC's approach "under which a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller."
• Healthcare exemption: upheld. The court sustained the scope of the exemption for time-sensitive healthcare calls.

Why it matters

• Autodialer question passed to the courts. After this decision, federal appeals courts split on how to read the autodialer definition. The Supreme Court resolved that split in Facebook, Inc. v. Duguid in 2021.
• Reassigned Numbers Database. The FCC later took up reassigned numbers again and adopted a different approach. In a December 2018 order (FCC 18-177) it created the Reassigned Numbers Database and a safe harbor for callers who check it, now found at 47 C.F.R. § 64.1200(m).
• Revocation rules. The "any reasonable means" standard that the court sustained later became part of the FCC's codified revocation rules. See the TCPA Consent guide for the latest rules and pending changes.