Shots Fired: FCC’s TCPA Order is “Arbitrary, Capricious, and an Abuse of Discretion”

Published: Jul. 15, 2015

Updated: Oct. 05, 2020

Before the proverbial ink had even dried on the FCC’s TCPA Omnibus Order, one party is already challenging its legality. ACA International filed a Petition for Review on the day of the Order’s release, followed by an Amended Petition for Review on July 13, 2015. The Amended Petition alleges the following:

  • The FCC’s treatment of “capacity” under the TCPA’s definition of “automatic telephone dialing system” is “arbitrary, capricious, and an abuse of discretion, and results in an approach that does not comport with a caller’s constitutional rights of due process and freedom of speech and that disregards the applicable statute.”
  • The FCC’s treatment of predictive dialers unlawfully exceeds the FCC’s statutory authority because it “expands the statutory definition of an ‘automatic telephone dialing system’ under the Telephone Consumer Protection Act beyond the definition that Congress enacted.”
  • The FCC’s treatment of “prior express consent” is also “arbitrary, capricious, and an abuse of discretion, and does not comport with a caller’s constitutional right of due process.”
  • The Order is otherwise arbitrary, capricious, and an abuse of discretion because it disregards the actual statute.

Among other things, ACA International asks the Court to hold unlawful and compel the FCC to treat “capacity,” “predictive dialers,” and “prior express consent” in accordance with the statutory definition. Specifically with regard to reassigned numbers, ACA International requests that the Court require the FCC to either establish a viable safe harbor for wrong number calls to reassigned numbers, or define “called party” as a call’s intended recipient.

The Order is certainly contentious. Indeed, one dissenting FCC Commissioner remarked that the FCC’s position on autodialers is “flatly inconsistent with the TCPA,” and another Commissioner described the Order as a “farce.” As businesses face an increased risk of TCPA litigation, the outcome of any judicial review of the FCC’s Order will significantly affect the manner in which companies communicate with consumers.

Photo by Jonathan Kos-Read from Flickr