An Appeals Court has rejected 2015 FCC rules that drastically expanded the scope of definitions in the Telephone Consumer Protection Act, a law designed to reduce the nuisance of robocalls.
By Laurence Banville
A decision out of the US Court of Appeals for the District of Columbia has narrowed the scope of an Obama-era rule to stem the tide of irritating - and usually illegal - telemarketing robocalls, according to ABC News. On March 16, 2018, the DC Appeals Court struck down what it considered an overly-broad definition of autodialer systems, the use of which is heavily regulated, along with eliminating a "one-strike rule" for telemarketers who call reassigned phone numbers.
FCC Regulations Made Every Smartphone Call (In Theory) IllegalIn a lawsuit brought by ACA International, the debt collection trade group argued that FCC guidelines published in 2015 took an unacceptably-broad approach to the law, expanding the legislation's range to include, in theory, many normal smartphones.
Judge Sri Srinivasan, writing for a unanimous D.C. federal appeals court, agreed. In his opinion, Judge Srinivisan noted that, as interpreted by the FCC, any machine or piece of equipment that could, in principle, be used to dial numbers "using a random or sequential number generator" should be classified as an autodialer system under the law.
And since the average smartphone today, with the addition of some simple software, is capable of dialing stored numbers at random (or sequentially), every smartphone could be swept into the FCC's revised definitions.
Court Rejects "Eye-Popping Sweep" Of TCPA RuleAny call made using an autodialer without the recipient's prior express written consent is illegal, with few exceptions. Essentially, Judge Srinivasan wrote, the Federal Communications Commission had put every smartphone user at risk of being hit with a robocall lawsuit.
To quote from the Judge's opinion at length:
"If every smartphone qualifies as an ATDS [autodialer system], the statute's restrictions on autodialer calls assume an eye-popping sweep [...] 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 cell phone 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. And if she sends a group message inviting ten people to the gathering, again without securing prior express consent from any of the recipients, she not only would have infringed the TCPA ten distinct times but would also face a minimum damages recovery against her of $5,000."The FCC considered this speculative problem in 2015 when the regulation was being crafted, but dismissed concerns, including those raised by current FCC-chairman Ajit Pai, as purely theoretical.
The Telephone Consumer Protection Act is enforced largely through private action. Get an illegal robocall? You can sue the person or company who called you, demanding damages between $500 and $1,500 per illegal call. Absent regulatory enforcement, the penalty for making an illegal call only exists if someone actually sues you. Smartphone users wouldn't be at risk, the FCC reasoned in 2015, because most people don't use their phones to make unwanted calls.
FCC Chair Praises OpinionAt the time, Ajit Pai, who served on the Federal Communications Commission prior to becoming the agency's Chairman, "dissented" from the "misguided decision."
In a statement, Pai celebrated the Appeals Court's decision, writing, "Today's unanimous D.C. Circuit decision addresses yet another example of the prior FCC's disregard for the law and regulatory overreach [...] Instead of sweeping into a regulatory dragnet the hundreds of millions of American consumers who place calls or send text messages from smartphones, the FCC should be targeting bad actors who bombard Americans with unlawful robocalls."
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