885 F.3d 687 (D.C. Cir. 2018), 15-1211, ACA International v. Federal Communications Commission

Docket Nº:15-1211, 15-1218, 15-1244, 15-1290, 15-1304, 15-1306, 15-1311, 15-1313, 15-1314, 15-1440, 15-1441
Citation:885 F.3d 687
Opinion Judge:Srinivasan, Circuit Judge.
Party Name:ACA INTERNATIONAL, et al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Cavalry Portfolio Services, LLC, et al., Intervenors
Attorney:Shay Dvoretzky argued the cause for petitioners ACA International, et al. With him on the joint briefs were Helgi C. Walker, Monica S. Desai, Amy L. Brown, Jonathan Jacob Nadler, Christopher J. Wright, Jennifer P. Bagg, Elizabeth Austin Bonner, Robert A. Long, Yaron Dori, Brian Melendez, Tonia Ou...
Judge Panel:Before: Srinivasan and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.
Case Date:March 16, 2018
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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885 F.3d 687 (D.C. Cir. 2018)

ACA INTERNATIONAL, et al., Petitioners

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Cavalry Portfolio Services, LLC, et al., Intervenors

Nos. 15-1211, 15-1218, 15-1244, 15-1290, 15-1304, 15-1306, 15-1311, 15-1313, 15-1314, 15-1440, 15-1441

United States Court of Appeals, District of Columbia Circuit

March 16, 2018

Argued October 19, 2016

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On Petitions for Review of an Order of the Federal Communications Commission

Shay Dvoretzky argued the cause for petitioners ACA International, et al. With him on the joint briefs were Helgi C. Walker, Monica S. Desai, Amy L. Brown, Jonathan Jacob Nadler, Christopher J. Wright, Jennifer P. Bagg, Elizabeth Austin Bonner, Robert A. Long, Yaron Dori, Brian Melendez, Tonia Ouellette Klausner, Keith E. Eggleton, Kate Comerford Todd, Steven P. Lehotsky, and Warren Postman. Lindsay S. See entered an appearance.

Charles R. Messer, pro se, was on the brief for amicus curiae Charles R. Messer in support of ACA International’s petition.

Paul Werner argued the cause for petitioner Rite Aid Hdqtrs. Corp. With him on the briefs was Brian Weimer.

Thomas C. Mugavero, Steven A. Augustino, Jonathan E. Paikin, Jonathan G. Cedarbaum, Blaine C. Kimrey, and Bryan K. Clark were on the joint briefs for intervenors MRS BPO LLC, et al. in support of petitioners.

Don L. Bell, II was on the brief for amicus curiae The National Association of Chain Drug Stores, Inc. in support of petitioner Rite Aid Hdqtrs. Corp.

H. Russell Frisby, Jr., Harvey L. Reiter, Aryeh Fishman, Michael Murray, and Jay Morrison were on the brief for amici curiae American Gas Association, et al. in support of petitioners.

Charles H. Kennedy was on the brief for amici curiae The American Bankers Association, Credit Union National Association and The Independent Community Bankers of America in support of petitioners.

Andrew B. Clubok, Susan E. Engel, and Devin S. Anderson were on the brief for amicus curiae The Internet Association in support of petitioners.

Joseph R. Palmore and Seth W. Lloyd were on the brief for amici curiae Retail Litigation Center, Inc., National Retail Federation, and National Restaurant Association in support of petitioners.

Bryan N. Tramont and Russell P. Hanser were on the brief for amicus curiae CTIA-The Wireless Association in support of petitioners.

Eric J. Troutman was on the brief for amici curiae American Financial Services Association, Consumer Mortgage Coalition, and Mortgage Bankers Association in support of petitioners. Jan T. Chilton and Kerry W. Frarnich entered appearances.

Amy M. Gallegos was on the brief for amicus curiae Communication Innovators in support of petitioners.

Scott M. Noveck, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were William J. Baer, Assistant Attorney General, U.S. Department of Justice, Kristen C. Limarzi, Steven J. Mintz, Attorneys, Jonathan B. Sallet, General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, and Jacob M. Lewis, Associate General Counsel.

Craig L. Briskin and Julie Nepveu were on the brief for amici curiae National Consumer Law Center, et al. in support of the Federal Communications Commission 2015 Omnibus Declaratory Ruling and Order.

Marc Rotenberg and Alan Butler were on the brief for amici curiae Electronic Privacy Information Center (EPIC) and Six Consumer Privacy Organizations in support of respondents.

Before: Srinivasan and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

OPINION

Srinivasan, Circuit Judge.

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Unwanted robocalls are an all-too-familiar phenomenon. For years, consumers have complained to the Federal Communications Commission about automated telemarketing calls and text messages that they did not seek and cannot seem to stop.

Congress sought to address consumers’ concerns with undesired robocalls in the Telephone Consumer Protection Act of 1991. The TCPA generally prohibits the use of certain kinds of automated dialing equipment to call wireless telephone numbers absent advance consent. The Act vests the Commission with authority to implement those restrictions.

In this case, a number of regulated entities seek review of a 2015 order in which the Commission sought to clarify various aspects of the TCPA’s general bar against using automated dialing devices to make uninvited calls. The challenges encompass four issues addressed by the agency’s order: (i) which sorts of automated dialing equipment are subject to the TCPA’s restrictions on unconsented calls; (ii) when a caller obtains a party’s consent, does a call nonetheless violate the Act if, unbeknownst to the caller, the consenting party’s wireless number has been reassigned to a different person who has not given consent; (iii) how may a consenting party revoke her consent; and (iv) did the Commission too narrowly fashion an exemption

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from the TCPA’s consent requirement for certain healthcare-related calls.

We uphold the Commission’s approach to revocation of consent, under which a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller. We also sustain the scope of the agency’s exemption for time-sensitive healthcare calls.

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.

We therefore grant the petitions for review in part and deny them in part.

I.

The federal government’s efforts to combat unwanted robocalls have spanned nearly three decades, involving two federal agencies and a number of congressional enactments. In the Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994, 15 U.S.C. § 6101 et seq., Congress empowered the Federal Trade Commission to regulate the telemarketing industry. The FTC’s measures include a general bar against calling any telephone number on the "do-not-call registry" without consent or an established business relationship. 16 C.F.R. § 310.4(b)(1)(iii)(B); see 15 U.S.C. § 6151(a). This case does not concern the FTC’s initiatives.

This case instead concerns the Federal Communications Commission’s efforts to combat unwanted robocalls pursuant to its authority under the TCPA. Some of the Commission’s restrictions on telemarketing calls mirror measures established by the FTC. Compare 16 C.F.R. §§ 310.4(b)(1)(iii)(B), 310.4(c), with 47 C.F.R. § 64.1200(c). But the agencies’ initiatives also differ in various respects. Of relevance here, only the TCPA specifically restricts the use of an "automatic telephone dialing system" to make calls. 47 U.S.C. § 227(b)(1)(A). Petitioners challenge the Commission’s interpretation and implementation of various TCPA provisions pertaining to automated dialing equipment.

A.

Congress enacted the TCPA in 1991 based on findings that the "use of the telephone to market goods and services to the home and other businesses" had become "pervasive due to the increased use of cost-effective telemarketing techniques." 47 U.S.C. § 227 note, Pub. L. No. 102-243, § 2(1), 105 Stat. 2394, 2394. "Many consumers," Congress determined, "are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers." Id. § 2(6)-(7).

The TCPA restricts calls both "to any residential telephone line" and to "any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii), (B). This case solely concerns the latter restrictions on telephone calls to wireless numbers.

Congress, in that regard, made it "unlawful ... to make any call (other than a call made for emergency purposes or made with the prior express consent of the called

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party) using any automatic telephone dialing system ... to any telephone number assigned to a ... cellular telephone service," "unless such call is made solely to collect a debt owed to or guaranteed by...

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