ACA Wins Legal Challenge against FCC’s TCPA Declaratory Ruling and Order


3/16/2018 8:00 AM

Victory for ACA as appeals court decision overturns the FCC’s expansive interpretation of the TCPA

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ACA International, the Association of Credit and Collection Professionals, and businesses and organizations from a wide variety of industries secured a major victory today from the U.S. Court of Appeals for the D.C. Circuit in its landmark case:  ACA International v. Federal Communications Commission, et al.

In handing down its hotly-anticipated decision in the pivotal ACA Int’l case, ruling 3-0 in favor of business industries, the D.C. Circuit Court focused on the key issues ACA presented in its challenge to the 2015 Telephone Consumer Protection Act (TCPA) Declaratory Ruling and Order, including the definition of an auto-dialer, a reasonable manner approach to revocation of consent, and the one-call exemption for reassigned numbers. 

The appellate court’s opinion set aside the FCC’s explanation of which devices qualify as an Automated Telephone Dialing System (ATDS), as well as its understanding of when a caller violates the act by calling a wireless number previously held by a consenting party but reassigned to a person who has not given consent. 

The appellate court, however, sustained the commission’s ruling that a party can revoke consent through any reasonable means by clearly expressing a desire to receive no further calls or texts.

“ACA International is extremely pleased by the court’s thoughtful and careful consideration of the arguments the credit and collection industry made in the case. We applaud the court for making the right decision today because it supports legitimate, law-abiding businesses and recognizes that technological advancements in the ways people communicate are good for society as a whole,” said Mark Neeb, ACA International’s CEO.  “Clearly, the court’s opinion in ACA Int’l is one of the most significant impacting the TCPA and the TCPA rules going forward. We will continue to study the court’s opinion and we look forward to educating ACA International members about the impact the decision will have on their day-to-day operations” 

Notably, the D.C. Circuit Court wrote, “We set aside, however, the Commission’s effort to clarify the types of calling equipment that fall within the TCPA’s restrictions. 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. We also vacate the agency’s approach to calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The Commission concluded that calls in that situation violate the TCPA, apart from a one-call safe harbor, regardless of whether the caller has any awareness of the reassignment. We determine that the agency’s one-call safe harbor, at least as defended in the order, is arbitrary and capricious.”

“ACA is gratified by the court’s unanimous decision granting in part ACA’s petition for review and setting aside, in part, the FCC’s 2015 TCPA Order that had significantly expanded the scope of the TCPA and made it more challenging for companies to comply with the TCPA’s provisions,” said ACA International’s Corporate Counsel, Karen Scheibe Eliason.  “This decision affirms that consumer interests are best served when legitimate businesses are able to contact consumers to communicate information that they want, need or expect to receive rather than by outdated rules and regulations built for a world that no longer exists.  And ACA is pleased to see that attempts to maintain unnecessary, unwarranted and unduly burdensome regulatory handcuffs on businesses have been thwarted.” 

ACA filed the first petition for review within hours after the FCC issued the TCPA Order in July 2015. ACA argued in its petition that the FCC's exercise of regulatory authority expanded the scope and reach of the TCPA in a way that Congress never intended – leaving a law in place that hurts legitimate, law-abiding business. ACA's appeal, as well as the subsequent appeals filed by nine other businesses and organizations, was later centralized in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation. 

ACA International (ACA), the association of credit and collection professionals, is the largest membership organization in the credit and collection industry. Founded in 1939, ACA brings together third-party collection agencies, law firms, asset buying companies, creditors and vendor affiliates, representing tens of thousands of industry professionals. ACA produces a wide variety of products, services and publications, including educational and compliance-related information; and articulates the value of the credit and collection industry to businesses, policymakers and consumers. www.acainternational.org.

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