D.C. Circuit Sets October Argument in Robocall Challenge

By Chris Bruce

July 26 — A federal appeals court said it will hear argument in October in a major case that tests how federal regulators define robocalls ( ACA Int'l v. FCC, D.C. Cir., No. 15-cv-01211, scheduling note 7/25/16 ).

At issue in the U.S. Court of Appeals for the District of Columbia Circuit is a petition challenging a 2015 ruling by the Federal Communication Commission (FCC) under the Telephone Consumer Protection Act (TCPA). Among other determinations, the FCC said TCPA restrictions on autodialers apply to any device with the “capacity” to dial telephone numbers automatically, even if the autodialer isn't being used for that purpose.

ACA International, a trade group that represents third-party debt collection companies, challenged the ruling, saying the FCC expanded the definition of “automatic telephone dialing system” (ATDS) beyond the definition provided by Congress.

In a brief docket note July 25, the D.C. Circuit's clerk said the court will hear argument at 9:30 a.m. on Oct. 19. The names of the judges on the three-judge panel will be released roughly 30 days ahead of the argument.

The case has attracted numerous briefs and requests for intervention. In a December filing, the American Bankers Association, the Credit Union National Association, and the Independent Community Bankers of America urged the court to hear the petition.

If upheld, the brief said, the FCC's order could restrict wireless communications with customers, including those alerting customers to possible security breaches.

“By sweeping into the autodialer definition virtually all modern dialing technologies, the Commission imposes a prior express consent requirement for the vast majority of calls to cell phones — a requirement that significantly limits a financial institution’s ability to communicate with consumers,” the brief said.

The American Financial Services Association, the Consumer Mortgage Coalition, and the Mortgage Bankers Association also briefed the case in support of the petitioners.

The TCPA, enacted in 1991, places restrictions on telemarketing and automated telephone devices. Financial institutions and other companies frequently face class lawsuits alleging violations of the TCPA.

To contact the reporter on this story: Chris Bruce in Washington at cbruce@bna.com

To contact the editor responsible for this story: Mike Ferullo at mferullo@bna.com

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