U.S. Chamber Challenges FCC’s Actions over Telephone Consumer Protection Act

Wednesday, September 2, 2015 - 4:45pm

WASHINGTON, D.C. — The U.S. Chamber of Commerce filed a petition for review today in the U.S. Court of Appeals for the D.C. Circuit challenging several aspects of a declaratory ruling and order recently issued by the Federal Communications Commission (FCC) that will accelerate abusive class action lawsuits against businesses under the Telephone Consumer Protection Act (TCPA). The U.S. Chamber is represented by the U.S. Chamber Litigation Center and the law firm of Gibson Dunn & Crutcher, LLP.

“Although we support the rights of consumers as it relates to telephone communications, the FCC overstepped its authority by creating new restrictions on legitimate, good faith communications from businesses to their customers who previously gave their permission to be contacted,” said Harold Kim, executive vice president of the U.S. Chamber Institute for Legal Reform (ILR). “These arbitrary new limits will fuel abusive class action lawsuits against businesses.”

In its declaratory ruling and order the FCC, in a divided vote, vastly expanded the scope of the TCPA in several ways. 

  • First, as explained in the Chamber’s petition for review, the FCC adopted a broad definition of the types of equipment covered by the TCPA, going so far as to suggest that even mass-market smartphones could be covered “auto-dialers.” The breadth of this ruling is highlighted by the fact that the FCC had to rely on the antiquated rotary phone as an example of equipment not covered by the law.  
  • Second, the FCC concluded that the TCPA applies to any call made to a current subscriber or user of a reassigned wireless number, rather than the intended recipient.
  • Third, the FCC arbitrarily allowed just one call before imposing strict liability under the TCPA for calls that, without the caller’s knowledge, have been placed to a reassigned number—despite the fact that there is no practical way to verify the continued accuracy of numbers before a call is placed. 
  • Fourth, the FCC significantly limited the TCPA’s consent defense, which is an essential statutory tool for warding off liability under the TCPA. 

Because the TCPA is increasingly the basis for meritless class actions that seek crippling damages of up to $1,500 per call against businesses, of all sizes and types, the FCC’s actions are particularly harmful for the Chamber’s members.

A copy of the U.S. Chamber’s petition for review is available here.

ILR seeks to promote civil justice reform through legislative, political, judicial, and educational activities at the national, state, and local levels.

The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.