D.C. Circuit Court of Appeals finally issued a decision in ACA International, et al. v. FCC regarding the FCC’s Omnibus 2015 TCPA Declaratory Ruling and Order.  The Court granted in part and denied in part the petitions for review.

Bottom line:  Very good for us.  The decision strikes down the worst parts of the FCC order and immediately enhances certain defensive arguments against litigation.  It also provides a clear runway for the current FCC to adopt clear, favorable interpretations and bright-line rules.  And to finally address our pending petition on healthcare consent issues.  

•    The biggest takeaway is that callers in the healthcare ecosystem are no longer subject to the FCC’s expansive “autodialer” definition.  The D.C. Circuit invalidated the FCC’s interpretation as impermissibly broad and arbitrarily vague.  While the court did not adopt an alternative definition of “autodialer,” it drew the line at a definition that would cover all smartphones.  And at a minimum, any definition must give callers meaningful guidance about their liability exposure.  We expect the FCC to commence a follow-on rulemaking and adopt a more sensible framework that does not risk sweeping in any and all calling technologies. 

•    The D.C. Circuit also threw out the FCC’s approach to reassigned numbers.  We expect the FCC’s follow-on rulemaking to clarify (in some form) that callers are not strictly liable when they mistakenly attempt to reach a number that has been reassigned.  It remains to be seen, however, how the Court’s decision will impact the FCC’s ongoing proceeding to establish reassigned numbers database(s) for the benefit of callers.   

•    The D.C. Circuit upheld the FCC’s ruling that callers can revoke their consent through any reasonable means.  Nevertheless, the Court did not hold that the TCPA required such a rule.  For that reason, the FCC remains free to change its framework and move to a regime where callers have more control over the means by which consumers revoke consent.  

•    The D.C. Circuit rejected Rite Aid’s attack against the FCC’s decision to selectively exempt certain exigency-related, free-to-end-user healthcare calls from the consent requirements.  The Court also upheld the FCC’s decision to exempt certain HIPAA-governed calls to residential landlines but not wireless numbers.  RiteAid’s arguments were narrow in their scope and somewhat misframed, and we expect the Court’s ruling to have a modest impact, if any, on callers in the healthcare ecosystem.   

•    The D.C. Circuit’s decision leaves many TCPA issues of relevance to the healthcare ecosystem unchanged.  It does not, for example, provide further guidance/relief on what kinds of calls or texts are “marketing” and therefore require “prior express written consent.”  Nor does the decision provide definitive clarity on the types of healthcare-related calls that fall within the “emergency purposes” exception to the consent requirement.  Courts will continue to evaluate these issues on a case-by-case basis.  

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