ACA International filed a lawsuit in July to challenge the Federal Communications Commission’s Declaratory Ruling concerning the Telephone Consumer Protection Act. On Friday, in the U.S. Court of Appeals for the D.C. Circuit, the FCC filed its answering brief to the case, titled ACA International, et al. v. FCC and U.S.  

ACA and other petitioners filed suit specifically to challenge the FCC’s authority and the "unlawful, arbitrary and capricious provisions" of the TCPA ruling. The lawsuit accused the FCC of abdicating its responsibility to clarify TCPA areas of uncertainty while making TCPA issues more confusing. 

The FCC previously stated that the ruling reaffirmed the "TCPA’s protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology and responding to a number of requests for clarity from businesses and other callers."

The ruling reiterated and simplified key sections of the TCPA, according to the FCC. If a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, for example, the caller must have received the consumer's prior express consent or face liability for violating the TCPA. Prior express consent must be in writing if the message is a telemarketing call, but can be either oral or written if the call is informational, according to the Declaratory Ruling.

The FCC, in the answering brief, stated it seeks to preserve the Declaratory Ruling, arguing that recent Congressional reforms to the TCPA support its interpretation of the Act.

The U.S. Senate passed a bipartisan budget bill in October that outlined a clear path for companies to use modern dialing technologies when contacting consumers via cell phone about debts owed to or guaranteed by the government – such as student loans, mortgages and taxes. The Senate bill requires the FCC, in consultation with the U.S. Department of Treasury, to issue a regulation within nine months of the bill’s enactment about the frequency and duration of such calls. 

President Obama subsequently signed a budget deal that included the provision to use modern dialing technologies when contacting consumers via cell phone about government-related debts.  ACA International and the other petitioners argued in their lawsuit that the FCC went far beyond Congress’s original intent when redefining statutory terms to expand the scope of the TCPA.   The FCC, in Friday’s filing, said: "If petitioners were correct that devices that can call any stored list of numbers (not just random or consecutive numbers) fall outside the TCPA’s autodialer restrictions, then there would have been no need to exempt debt-collection calls from the autodialer restrictions; debt collectors do not go about calling random or consecutive numbers hoping to stumble upon someone who owes them an overdue debt. Congress’s recent amendments to the TCPA thus confirm that Congress shares the FCC’s decade-old understanding that the TCPA’s autodialer restrictions apply to devices used to call a stored list of telephone numbers." ACA currently is examining the FCC’s latest arguments.   


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