Pai FCC Expected to Follow Up on DC Circuit TCPA Ruling, Take Aim at Lawsuits

The D.C. Circuit decision was a major court ruling that was pending for a long time, said an O’Rielly aide. O’Rielly wants the FCC to address the TCPA issues, but he believes it should be done in a thoughtful way, and that’s going to take some time, the aide said. Commissioner Brendan Carr, who wasn't on the FCC in 2015, described the ruling as subjecting consumers and legitimate businesses to liability and has expressed interest in revisiting the FCC’s approach. The FCC and former FCC Chairman Tom Wheeler declined to comment. Wheeler was chairman when the FCC issued the 2015 ruling (see 1506180046).

Margot Saunders, senior counsel at the National Consumer Law Center, said the “quick answer” is that the center doesn’t think the D.C. Circuit ruling is that significant. “We think the courts are likely to still hold most autodialers out there will be covered by the TCPA, and that the issue of the definition will come up again with the FCC,” she said. “But that request is likely to be instigated by the callers, rather than by” consumers. A memo by the center explains why the court decision had only limited implications, she said.

Adonis Hoffman, chairman of Business in the Public Interest, told us he has said TCPA should stand for “total cash for plaintiffs' attorneys." Pai cited during the 2015 vote research by Hoffman, who said trial lawyers can earn an average of $2.4 million from a TCPA suit. “Before the D.C. Circuit overturned the 2015 ruling there was carte blanche for frivolous class-action cases,” Hoffman said. “The untold story is how many small and medium-sized companies have been forced out of business defending against these cases because the statute lacks clarity. If the FCC wants to preserve a modicum of the original intent of the law, it will now issue a declaratory ruling implementing the Pai interpretation on the key provisions in dispute.”

The FCC is likely to seek comment, said Craig Gilley, partner at Mintz Levin. “The Republican-controlled FCC now has a prime opportunity to put a Pai stamp on the portions of the declaratory ruling that were vacated,” Gilley said. “The FCC will soon open some sort of proceeding to do so, either a declaratory ruling or a formal rulemaking proceeding leading to a new order and new interpretations, including almost certainly the autodialer definition.”

Gilley noted that when the D.C. Circuit issued its ruling Pai issued a statement consistent with his 2015 dissent. “It is pretty clear that Chairman Pai’s focus in any new proceeding would be on narrowing the scope of the autodialer definition in a meaningful way,” he said. “Such a ruling limiting the definition, when it eventually is implemented, would provide significant comfort to the many businesses facing TCPA litigation and investigation risk.”

“All eyes are now on the FCC to provide much-needed clarity under the TCPA,” said Mark Brennan of Hogan Lovells. “There are many long-pending TCPA petitions, and more are undoubtedly on the way now, but the agency can also resolve these items on its own motion, it doesn’t need a petition,” Brennan said. “The D.C. Circuit signaled a path forward for the FCC on key TCPA issues such as the meaning of autodialer and ‘called party,’ so the agency has what it needs to act promptly.”

“The issues addressed in the DC Circuit’s opinion are in the FCC’s court, but the nature and timing of next steps are uncertain,” emailed lawyer Charles Kennedy, who represents banking and credit union groups. “The FCC has no deadline for revisiting its interpretations of the TCPA autodialer restrictions,” he said. “It might choose to initiate a comprehensive rulemaking proceeding, which would take some time to prepare. Or, it might respond to petitions for declaratory rulings from interested parties.” Acting on the petitions would likely be faster than an FCC- initiated rulemaking, he said.

In the 2015 order, Pai expressed disdain for unwanted telemarketing call​s but objected strongly to the FCC’s overly broad definition of ATDS, said Paul Feldman of Fletcher Heald. Pai “can now shape the discussion going forward,” Feldman said. It will be “particularly interesting to see what the commission does in response to the court’s surprising suggestion that perhaps the term [ATDS] itself is outdated and now ‘inapplicable.’”

“I’m glad they are interested in moving forward,” said Megan Brown of Wiley Rein. “I think it’s really important to not be afraid to address the abuses of the TCPA. Some groups get really upset if the TCPA isn’t a one-way ratchet against companies.”

Angela Giancarlo of Mayer Brown said in a recent Telecommunications Law Resource Center article that the court upheld part of the 2015 order, including the interpretation that called parties may revoke consent ‘‘through any reasonable means clearly expressing desire to receive no further messages from the caller’’ and limits on time-sensitive communications pertaining to health-care matters. “We expect the agency to consider taking up other aspects of the agency’s TCPA rules, which the current commissioners do not believe properly reflect the statute and congressional intent,” Giancarlo wrote.

The FCC said in a notice Monday Pai and FTC acting Chairman Maureen Ohlhausen will open the FCC's Stop Illegal Robocalls Expo on April 23. "The Expo, which is free and open to the public, will showcase innovative technologies, devices, and applications to minimize or eliminate the number of illegal robocalls consumers receive," the FCC said. It starts at 10 a.m. at the Pepco Edison Place Gallery, 702 8th St. NW.