Removing Barriers Blog

Oral Arguments Include Lively Discussion about FCC TCPA Order
Posted October 19, 2016 by CUNA Advocacy

A panel consisting of D.C. Circuit Court of Appeals Judges Srinivasan, Pillard, and Edwards questioned counsel for the petitioners, as well as the FCC’s counsel, for nearly three hours in the oral arguments for the lawsuit challenging the FCC’s July 2015 TCPA Order. Senior Directors of Advocacy and Counsel Leah Dempsey and Andy Price attended on behalf of CUNA, who is an amici in the case. 

During the arguments, a large part of the discussion surrounded the question of what exactly is considered an autodialer. Specifically, the court appeared to take issue with the lack of clarity surrounding smartphones and whether they could be considered autodialers if they had the capacity to randomly or sequentially dial calls. The court also went back and forth on questions about whether other lists of numbers on computers, or other devices, that could be dialed in a random or sequential fashion would be covered by the TCPA.  

Overall, there were a number of questions about whether Congress, more than two decades ago, would have anticipated the problems the TCPA Order has caused for new technologies. Judge Edwards specifically noted that he did not think Congress contemplated the technology in use today. 

Counsel for petitioners argued that the FCC is trying to use an outdated statute to address new concerns about communications with consumers, despite that Congress enacted the TCPA for a different purpose to address bothersome prerecorded and artificial voice calls that were being used in the early 90s. These past concerns do not align with the restrictions on informational calls, such as those made by credit unions, that the Order impacts today. 

There was also a lengthy discussion on both sides about new requirements the Order imposes when a consumer revokes consent to being called. The court questioned the FCC about what is considered a reasonable method of revoking consent. Petitioners argued that the Order left the door open for individualized methods of revoking consent to be considered reasonable, which make it difficult for businesses to know exactly what protocols they need to have in place for receiving notice of a consumer revoking consent.  

The judges also questioned the new requirements for calling reassigned numbers that include a one-call safe harbor, which puts the caller on notice of the reassignment even if the call is not answered. They noted that an unanswered call is hardly notice that the number has been reassigned. 

Counsel for the FCC argued that the ambiguities in the Order have not caused businesses to restrict their use of autodialers to call consumers. Counsel for the petitioner specifically corrected this, noting that community banks (which is also true for credit unions) have in some instances stopped texting consumers because of the lack of clarity in how to comply with the Order. 

Both Judges Pillard and Sriinivasan are Obama appointees and Judge Edwards is a Carter appointee, therefore all are democratic appointees ruling on a democratic controlled FCC board.   

CUNA continues to follow this case and expects it may take several months for the Judges to issue an opinion.