ACA International Files Joint Brief in D.C. Circuit Challenging TCPA Order

ACA blasts the FCC for its unlawful, arbitrary and capricious TCPA Order

Nov 30, 2015, 14:05 ET from ACA International

WASHINGTON, Nov. 30, 2015 /PRNewswire-USNewswire/ -- In a joint legal brief filed last Wednesday, ACA International, the association of credit and collection professionals, and other petitioners asked the United States Court of Appeals for the D.C. Circuit to overturn the unlawful provisions of the Federal Communication Commission's July 2015 Declaratory Ruling and Order on the Telephone Consumer Protection Act. 

The petitioners in the consolidated case, ACA International, et al. v. Federal Communications Commission and United States, challenge the FCC's exercise of regulatory authority to expand 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.  The joint brief highlights the reasons why the FCC's TCPA Order is unlawful, and strongly rebukes the FCC's rationale for its impermissibly vague and internally inconsistent interpretations of the TCPA that contradict the ordinary meaning, structure and purpose of the statute, which lead to absurd and unconstitutional results.

ACA and the other petitioners contest three key aspects of the TCPA Order:  the FCC's interpretation of automated telephone dialing system, the FCC's treatment of prior express consent, including of reassigned numbers, and the FCC's treatment of revocation of consent.

ACA and the other petitioners argue that: 

"The Order misinterprets "ATDS" to consider potential rather than present ability, erases the random-or-sequential-number-generation requirement from the statute, and ensnarls regulated parties in uncertain and contradictory tests.  It eviscerates the statutory consent defense and discourages protected speech by holding callers strictly liable for calls to reassigned numbers.  And it encumbers callers with an unworkable system for processing revocations of consent, while preventing callers and consumers from overcoming this problem by private agreement.  In short, the Commission's interpretation of the TCPA leads to a $500 price tag on almost every routine call or text, transforming the statute's focused ban on random or sequential calling into an expansive source of crippling class-action liability."

ACA has been vocal in its support of the FCC crafting reasonable TCPA protections for consumers aimed at curtailing abusive telemarketing activities. Unfortunately, the FCC went well beyond that sensible mission and chose to impose an outdated, far-reaching, and punitive regulatory model on legitimate businesses that use modern dialing systems to provide their customers normal, expected, and desired information. 

According to the briefing schedule entered in the case, the joint brief for intervenors supporting ACA and the other petitioners is due on December 2, 2015.  The FCC's responsive brief must be filed by January 15, 2016.  After the FCC files its brief, ACA and the other petitioners will have an opportunity to respond to the FCC's justifications in a brief that will be due on February 16, 2016. Final briefs must be filed by February 24, 2016.  While not a certainty, it is anticipated that oral arguments will be scheduled in this case; if so, they would likely occur before the end of the D.C. Circuit Court's 2015-2016 Term.

ACA will continue to provide updates on the status of ACA's groundbreaking litigation against the FCC. 

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.

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Available Topic Expert(s): For information on the listed expert(s), click appropriate link.

Rob Foehl
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Pat Morris
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Cindy Sebrell
VP Public Affairs, ACA International


SOURCE ACA International