Industry groups representing a range of companies in retail, technology, financial services and utilities filed eight amicus briefs last week in a Washington, D.C. Circuit Court supporting challenges to the Federal Communications Commission's landmark declaratory ruling that expanded the agency’s rules under the Telephone Consumer Protection Act.
The amicus briefs support the position of several appellants, led by ACA International, arguing that the FCC exceeded its authority granted under the TCPA and adopted overly broad bans on certain autodialed calls and text messages to wireless customers.
The FCC's July ruling clarified a confusing set of TCPA rules and assumptions concerning the legalities of autodialers, revoking consent to contact and what penalties for non-compliance could result.
The TCPA prohibits anyone from making or sending autodialed phone calls or text messages to consumers’ wireless phones for marketing purposes without written consent. The appellants contend that the autodialer definition is too broad and the exemptions for financial and health care-related autodialed calls are too narrow. The amicus briefs, including those from American Bankers Association, American Gas Association, CTIA —The Wireless Association, National Association of Chain Drug Stores and the National Retail Federation, agree with that argument, according to Mintz Levin, a Boston-based law firm that counsels clients on privacy and security issues including compliance and data breaches.
The FCC's July ruling expanded TCPA rules to define an autodialer as any device capable of automatically dialing phone numbers, even if the functionality isn't used at the time of the call. It exempts certain types of calls related to financial fraud or certain healthcare issues.
The amicus briefs criticize the rules for several reasons, including the contention that, as stated by the National Association of Chain Drug Stores Inc., the rule will interfere with its members ability to provide prescription and other notifications to customers. The FCC’s rules don’t adequately protect such calls, if made with an autodialer, from TCPA liability.
ACA International’s challenge to the ruling is consolidated with several others - including a challenge against imposing liability to anyone who autodials a number that once belonged to a consenting customer but has since been reassigned and a challenge to the FCC’s decision that a customer may revoke consent to receive autodialed calls by "any reasonable means."
Groups representing utility companies claim the definition creates potential liability to their members if the utility companies provide customers with critical information about service interruptions and storm conditions via an autodialed call or text message to wireless phones.Briefing in the consolidated appeal docket will continue through February.
TCPA violation penalties are severe - $500 for each unsolicited call or $1,500 if the company intentionally makes a call after the cell phone user denies permission. Third-party agencies that don’t have consent can’t auto dial anybody without facing a TCPA violation. Callers are liable even if they have the permission of the person they are trying to reach but the phone number has been reassigned to another individual. In one recent New York case against Time Warner Cable, a judge awarded the plaintiff a $230,000 judgment after she received numerous calls in an attempt to reach a customer she didn’t know, despite her notifying the company that she was the wrong party. Related litigation has dominated collection industry headlines in recent years.