The latest round of briefs in the court challenge of the new Telephone Consumer Protection Act (TCPA) restrictions on telephone research were filed on February 16, responding to the Federal Communications Commission’s (FCC) recent defense of those rules.

According to the Intervenors’ reply brief, from the Marketing Research Association (MRA), CASRO, and a number of non-research associations and companies, the FCC failed “to explain how its overbroad, inconsistent, and expansive interpretation of the TCPA accords with the text or purpose of the statute.” The Intervenors “remain deeply concerned that the FCC fundamentally has failed to recognize how the Order’s requirements will impair their ability to effectively communicate messages that customers desire to receive. The interpretation, therefore, must be set aside.

The Petitioners (the parties who launched the lawsuit against the TCPA rules) and Rite Aid (filing separately, since the company appears solely focused on the healthcare impact of the regulations) also filed their briefs on February 16.

The Intervenors’ response continued:

The definition of an automatic telephone dialing system (“ATDS”) adopted in the Order is foreclosed by the text of the TCPA, and is inconsistent with the Act’s history and purpose. The FCC asserts that the TCPA does not “unambiguously limit” the definition of an ATDS to a device’s present capacity because the statutory definition does not contain the word “present.” In so arguing, the FCC takes the term “capacity” out of context, blithely ignoring the clear import of the ATDS provision read as a whole. Indeed, the Commission goes a step further, apparently contending that as long as a device has the “potential” to dial numbers—regardless of whether those numbers are randomly or sequentially generated—it may be treated as an ATDS. This novel interpretation is at odds with the plain language of the TCPA and creates potentially calamitous uncertainty for financial institutions, market research companies, healthcare providers, and other businesses that regularly contact customers on their cellular phones.

The FCC’s interpretation of “called party” likewise is illogical and unworkable because it allows for imposition of liability when a cell phone number has been reassigned without the caller’s knowledge, and the caller is not alerted to the reassignment by the first call. This interpretation undermines a basic tenet of the TCPA—that a caller who obtains consent to contact a particular telephone number cannot be held liable for calls to that number—and exposes callers to potentially crippling class-action liability for innocent mistakes.”

Lastly, the FCC’s determination that a recipient of a call can revoke prior express consent by “any reasonable means” is arbitrary and capricious. The lack of a standardized method for revoking consent will lead to additional costs and burdens for businesses and create a system that is impossible to implement.

Read the full Intervenor’s brief responding to the FCC, focusing on the definition of an autodialer, who is a called party, and reasonable means for revoking consent.

The schedule for the TCPA court appeal is moving along as expected.

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