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The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling Friday that narrows a 2015 Federal Communications Commission regulation that had expanded the Telephone Consumer Protection Act’s scope.
The unanimous decision by the three-judge panel ruled against the FCC’s ruling as to which sorts of automated dialing equipment are subject to the TCPA’s restrictions on unconsented calls.
The ruling states “The Commission’s understanding would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage, an unreasonably expansive interpretation of the statute.”
“If every smartphone qualifies as an (automatic telephone dialing system) the statute’s restrictions on autodialer calls assume an eye-popping sweep,” said the ruling.
“Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time. If she lacks prior express consent to send the invitation, and if she obtains the acquaintance’s cellphone number from a mutual friend, she ostensibly commits a violation of federal law by calling or sending a text message from her smartphone to extend the invitation.”
“In short, the Commission’s ruling, in describing the functions a device must perform to qualify as an autodialer, fails to satisfy the requirement of reasoned decisionmaking,” the ruling states.
“The order’s lack of clarity about which functions qualify a device on a autodialer compounds the unreadableness of the Commission’s expansive understanding of when a device has the ‘capacity’ to perform the necessary functions.”
It also ruled against part of the regulation on the question of whether a caller violates the TCPA if, unbeknownst to the caller, the sending party’s wireless number has been reassigned to someone else.
The commission had concluded the TCPA is violated, apart from a one-call safe harbor, regardless of whether the caller is aware of the reassignment.
“We determine that the agency’s one call safe harbor, at least as defended in the order, is arbitrary and capricious,” the ruling said.
The court affirmed the regulation as to how a consenting party can revoke the consent to receive autodialed calls, and on exemptions from prior consent requirement calls to wireless numbers for time-sensitive health care calls.
In April 2017, the same court held in a divided opinion that an FCC rule that businesses that send out solicited fax advertisements must include opt-out notices exceeds the commission’s authority.
A federal court has refused to grant Zurich Insurance Group Ltd. summary judgment in a Telephone Consumer Protection Act case involving a now-bankrupt retailer and a plaintiff pursuing a $3 million judgment.