As the cherry blossoms prepare to bloom in Washington, D.C., our thoughts turn toward wondering when the D.C. Circuit will hand down its ruling in ACA International, et al v. FCC (Case No. 15-1211). This case, you will recall, is the consolidation of a number of appeals challenging the July 10, 2015, Order in which the FCC gave a very expansive reading to a number of provisions in the Telephone Consumer Protection Act (TCPA), long a thorn in the sides of businesses attempting to communicate with their customers by phone or text. Most notably, the Order provided a definition of an Automatic Telephone Dialing System (ATDS) that many feel went way beyond the statutory language the Order was purporting to interpret. Moreover, the Order afforded little satisfaction to businesses mistakenly dialing reassigned numbers. Our previous blog posts analyzing the Order and the Appeal predicted that the D.C. Circuit would most likely issue its decision in spring 2017.
And now, spring has sprung, the administration has changed, and so, too, has the chairman of the FCC. Chairman Wheeler, sometimes criticized for interpreting the law liberally to accomplish policy goals, is gone, and in his place is Ajit Pai, a commissioner in the Wheeler era, and now elevated to chair by President Trump. In summer 2015, Mr. Pai was one of two dissenters in the ACA Order; the other, Michael O’Reilly, remains a commissioner under Chairman Pai. Additionally, two of the three “yes” votes in ACA are now gone, with only Commissioner Clyburn still at the Agency, and the president seems in no hurry to fill the vacancies. In any event, filling those vacancies would likely not affect the current balance of power at the Commission.
On a related note, on Friday afternoon, the FCC released its Notice of Proposed Rulemaking and Notice of Inquiry that was unanimously adopted by the three sitting commissioners at the FCC’s Open Meeting on Thursday. This docket will explore the details of how to enable voice service providers to better protect subscribers from illegal robocalls through the use of call blocking technologies. Of perhaps greater interest, though, was that, in the process of voting on the technology blocking item, the two Republican commissioners provided a small bit of intel on how they might approach a remand by the D.C. Circuit of the ACA Order, should that happen this spring. Commissioner O’Reilly minced no words in demonstrating his displeasure with the FCC’s July 10, 2015, Order that, in his view, was a huge power grab by the Wheeler Commission, going well beyond the limits of the Agency’s jurisdiction. Commissioner O’Reilly clearly hopes that the Order is remanded and that he gets a chance to be in the majority this time around, reversing some of the Order’s key rulings. It seems apparent that, given the opportunity, Commissioner O’Reilly would, for example, vote for a narrow interpretation of the definition of an ATDS and would focus on the system’s current capacity to dial random or sequential numbers. In his brief remarks on Thursday, Commissioner O’Reilly emphasized the difference between using robocall blocking tools to deal with illegal overseas calls using spoofed or unassigned telephone numbers, and calls from legitimate businesses trying to communicate with their customers.
Chairman Pai’s views, however, were not as clear. He started his comments by quoting from two individuals who had recently emailed him, begging that he do something about the constant interruptions they receive from unwanted telephone calls, and about how the problem has only gotten worse with the passage of time. One of the individuals was an 80-year-old man. The chairman also spoke about how unwanted calls continue to be, by a wide margin, the subject of more consumer complaints to the FCC than any other issue. Chairman Pai did not speak about the ACA case directly, as Commission O’Reilly had done, but it seemed that he would be more mindful of consumers’ interests in the event of a remand by the D.C. Circuit. Even a passing glance at statements by Commissioner Pai and Commissioner O’Reilly reveals the significant difference in their tone.
Perhaps one of the best ways to secure a big win at the FCC if the ACA Order is remanded would be to try to compile evidence that what really bothers consumers is not receiving calls from legitimate companies whose names/phone numbers they recognize, but rather from the fraudsters using unassigned phone numbers or spoofing the phone numbers of others in an attempt to scam them. A data-driven presentation along those lines, coupled with an argument that the Commission is already addressing the bulk of the problem through the call blocking item it adopted Thursday (which, if given time to be properly implemented, will go a long way to placating angry consumers), could help businesses secure the relief they have long needed and much coveted.