ACA International v. FCC

The D.C. Circuit Court of Appeals heard arguments in October 2016 in a case that challenges a July 2015 Order from the Federal Communications Commission that expands the definition of an “autodialer” ban. We filed an amicus brief arguing that the FCC’s vague definitions have taken the ban too far and subject businesses to huge potential liability and fines even for the use of regular smartphones to make regular business text/phone contacts with customers, or for dialing numbers that have been reassigned to new users. The D.C. Circuit Court ruled on March 16, 2018, by striking down the FCC’s definition of autodialer and the strict conditions the Restaurant Law Center had objected to when calling reassigned numbers.

While the Court upheld consumers’ broad leeway to revoke consent, it did state that restaurants and other retailers could “avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods. If recipients are afforded such options, any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.” Prior to this ruling, the FCC had rejected requests that retailers be allowed to designate specific methods for revoking consent in favor of allowing the consumer to revoke consent “in any manner” that expresses a desire not to receive further messages.

Resolution

On May 3, 2018, we filed a Petition for Declaratory Ruling with the FCC urging them to craft a narrow definition of “autodialer” under the TCPA to replace the broad interpretation struck down by the D.C. Circuit to help curb unnecessary litigation.