United States: D.C. Circuit Weighing FCC's Controversial 2015 TCPA Declaratory Ruling

Today, a panel of the D.C. Circuit—composed of Judges Srinivasan and Pillard and Senior Judge Edwards—heard argument in ACA International v. FCC, the consolidated appeals from the FCC's 2015 Declaratory Ruling and Order, which greatly expanded the reach of the Telephone Consumer Protection Act ("TCPA"). (An audio recording of the argument is here, and Kevin attended the argument.) The case has been closely watched, and a number of TCPA class actions around the country have been stayed to await the D.C. Circuit's decision. More detail is below the fold, but here are our quick impressions from the argument:

  • The panel asked tough questions of lawyers for both sides in an argument that went two full hours over the allotted 40 minutes.
  • The panel focused most of its attention on the FCC's new—and far-reaching—definition of an automatic telephone dialing system (ATDS, or "autodialer"). All three judges expressed discomfort with the fact that the FCC's new definition could be read to cover smartphones.
  • Judge Edwards repeatedly voiced criticisms of the FCC's expansive readings of the TCPA across the board, and may be inclined to vacate large portions of the FCC's Declaratory Ruling.
  • Judge Pillard seemed the most receptive to the FCC's arguments.
  • Judges Srinivasan was the hardest to read, but it seems possible that he might join Judge Edwards in setting aside major portions of the FCC's Declaratory Ruling.


As readers of the blog may recall, the FCC's July 10, 2015 Declaratory Order and Ruling addressed 21 petitions seeking guidance regarding various requirements under the TCPA and the FCC's past regulations implementing that statute. The petitions largely focused on the rules prohibiting certain automated-dialing and texting practices, which have led to a torrent of class-action litigation seeking statutory damages that, when trebled, can reach $1,500 per call or text message.

The FCC's 2015 Declaratory Ruling covered a number of subjects. (Please read our report (pdf) for a full recap.) But today's argument in the D.C. Circuit focused largely on three issues:

  • The FCC's expanded definition of what equipment constitutes an autodialer triggering the autodialer provisions of the TCPA;
  • The FCC's attempt to impose of strict liability for all but the first call to a reassigned number, even if the caller would have no reason to know that the number had been reassigned; and
  • Whether the FCC can bar companies from limiting the manner by which consumers may revoke consent to receive autodialed calls or text messages.

Autodialer Definition

The primary focus of the argument was on the FCC's expanded definition of an autodialer. The statutory definition is "equipment which has the capacity" to "store or produce telephone numbers to be called, using a random or sequential number generator," and "to dial such numbers." 47 U.S.C. § 227(a)(1). In its Declaratory Ruling, the FCC concluded that equipment is an autodialer if it has the potential "capacity" to dial random or sequential numbers (whether generated on its own or from a preexisting list), even if that "capacity" has been "de-activated" or could be added only through "software changes" or other updates. In fact, the only device that the FCC was willing to say could not be modified to constitute an autodialer was a rotary telephone.

During the argument, the judges focused largely on the fact that most modern smartphones—as well as all computers—would fall under this definition—meaning that a person who calls a relative without the requisite prior consent would have violated the TCPA. Judge Edwards at one point observed that such an expansion of TCPA liability would be "absurd" and "not what Congress intended." He also suggested that the TCPA should be limited to prohibit only the "use" of an autodialer, and that a person using a smartphone to dial "his sister" would not be violating the TCPA.

Judges Pillard and Srinivasan were harder to read. The FCC lawyer arguing the case (Scott Noveck, who, as it happens, is a former Mayer Brown lawyer) defended the FCC's interpretation by contending that TCPA plaintiffs would be presented with intractable proof problems if defendants could avoid liability by simply claiming that they had flipped a switch on an autodialer to disable its random-call functions just before making the call at issue. Judge Pillard at some points in the argument appeared to accept that explanation. And she seemed concerned that the petitioners' view would render the TCPA would be a "dead letter," limiting its application to the random-call generators that companies stopped using decades ago.

But when the argument turned to whether smartphones would constitute autodialers under the FCC's definition, Judge Pillard did not accept the FCC's hedging. The FCC lawyer suggested that the FCC had not addressed smartphones in its Declaratory Ruling, instead inviting a future petition to ask about that issue. But Judge Pillard pointed out that the broad sweep of the 2015 Declaratory Ruling inevitably covered smartphones. And she seemed concerned that the definition of an autodialer that the FCC had adopted has caused the statute to extend beyond what Congress intended.

Judge Srinivasan's position on this issue is also difficult to predict. He stated that it seemed "impossible" to him that Congress would have intended to prohibit calls from smartphones. And at one point in the argument, he joked that receiving a call from one's grandmother on a cellphone would violate the TCPA under the FCC's view. But he pressed petitioners' counsel to concede that downloading an app needed to convert a smartphone into a true autodialer—with the ability to dial random numbers—required only "trivial effort."

The panel also heard a lot of argument about whether equipment that dials numbers from a preselected list—rather than generated at random or sequentially—constitutes an autodialer. But it was difficult to tell from the questions how the panel was leaning on this issue. At least two judges—Srinivasan and Pillard—seemed concerned that a company could avoid liability under the petitioners' approach by calling from a list of "all numbers in New York City." Nonetheless, the panel struggled with how the FCC's ruling that dialing numbers from a list could be squared with the statutory language of the TCPA.

Reassigned Numbers

Another issue that arose during the argument—one that arises frequently in TCPA litigation—is whether the TCPA is violated when a business attempts to place a call to one customer (who consented to receive such calls) but, because the phone number has been reassigned, the call turns out to be received by another person who does not consent to be called. The FCC has concluded that such calls violate the TCPA. The FCC ruled that the caller must have the consent "not of the intended recipient of the call, but of the current subscriber (or nonsubscriber customary user of the phone)." The FCC then adopted a safe harbor for the first call to a reassigned number, after which the company would be "deemed" to have actual or "constructive knowledge" that the number was no longer valid.

Petitioners contended that the FCC's ruling rested on a mistaken reading of the statute, arguing that if the intended recipient of the call has consented, the TCPA does not impose liability. And petitioners observed that as soon as the actual recipient of the calls objects, any further calls would trigger TCPA liability, as Congress intended.

It was difficult to tell whether the panel was accepting the petitioners' interpretation as the only reasonable one, rendering the FCC's contrary interpretation impermissible. Two of the judges (Srinivasan and Edwards) remarked at different times that the FCC's safe harbor appeared to be insufficient, as companies will frequently not learn from the first call or text to a reassigned number of the change in subscriber. (For example, the call may go to an uninformative voicemail box, or a text message may receive no response.)

The panel also seemed to offer a mixed reception to the FCC's explanation that the rule involved a tradeoff, and that the FCC could properly determine that consumers should not bear the risk of having to receive calls to reassigned numbers. Judge Srinivasan noted, however, that another purpose of the TCPA was to protect calls made in compliance with the rules from liability, and that the FCC's rule would chill companies from making those calls for fear of inadvertently calling a reassigned number.

Revocation of Consent

The final issue on which the panel focused extensively was whether companies may restrict the means by which a consumer may revoke consent to be called. In the Declaratory Ruling, the FCC determined that consumers may revoke consent "in any reasonable manner," and barred callers from "designating an exclusive means to revoke." The FCC provided several examples of what it deemed to be "reasonable" methods of revoking consent: in "writing," "by way of a consumer-initiated call" to the company, a request made during "a call initiated or made by the company," an in-person request at a company store, such as "an in-store bill payment location."

Judge Edwards observed that this rule was impractical for businesses. Judge Srinivasan similarly remarked that, for example, large companies can be reached at many phone numbers, and it would be difficult for them to monitor every number in order to try to record a revocation of consent.

Judge Pillard suggested, however, that the FCC was arguably forcing companies to come up with such an easy way to revoke consent that consumers would not try to do so by other means, which would eliminate the problem of having to "herd cats." But as petitioners' counsel pointed out in response, at least some consumers might still try to revoke consent in individualized ways, presenting companies with the difficult task of trying to record all consents. The end result, especially in combination with the FCC's rule imposing strict liability on calls to reassigned numbers, would be to prevent companies from being able to rely on a consumer's consent to be called.

A number of the judges asked whether consumers and companies can nonetheless enter into an agreement as to how consent may be revoked. The FCC lawyer agreed that they could, as long as the agreement was "voluntary" rather than on a "take-it-or-leave-it" basis.

The Bottom Line

It is always difficult to predict from argument how a judge—and especially a panel of judges—will rule. Certainly it is possible that some or all of the judges asked seemingly hostile questions not to signal disagreement with a position, but to probe the limits of that position.

That said, it seems possible that there were at least two votes on the panel to require the FCC to reconsider its approach to the definition of an autodialer, and perhaps also with respect to the safe harbor for calls to reassigned numbers. It is also possible that the panel might direct the FCC to provide greater clarity regarding how opt-out or revocation requests might work.

Originally published October 19, 2016

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions