FCC Claims Chevron Deference Against TCPA Rule Challenge

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By Lydia Beyoud

Jan. 19 — The Federal Communications Commission is claiming Chevron deference as part of its effort to fend off challenges to its 2015 rules to further restrict robocalls and spam texts under the Telephone Consumer Protection Act.

The FCC made the argument in a brief Jan. 15 in a case brought by the Association of Credit and Collection Professionals (ACA International), Sirius XM Radio Inc., the U.S. Chamber of Commerce and more than two dozen other amici and petitioner intervenors (ACA Int'l v. FCC, et al, D.C. Cir., No. 15-1211, respondent brief filed 1/15/16). The principle holds that courts should defer to reasonable agency interpretations of statutes that require them to take action.

Petitioners are seeking to overturn the rules, which they say vastly expanded the TCPA's reach and improperly define key terms for the purposes of the TCPA's consent provisions, among other complaints.

“Because the Commission's resolution of each of these issues was a reasonable exercise of its delegated authority to interpret and administer the TCPA, the petitions for review should be denied,” the FCC told the U.S. Court of Appeals for the District of Columbia Circuit. The agency further said its actions had carried out Congress's intent to spare consumers from the “nuisance and invasion of privacy” of unwanted automated or prerecorded calls.

The FCC approved new rules June 18, 2015 to tighten TCPA restrictions on unwanted robocalls and spam texts. In the rules, the FCC:

• determined that autodialer restrictions apply to any device with the capacity to autodial telephone numbers, even if not used in that manner;
• required new consent to autodial a wireless number that has been reassigned; and
• set forth certain safe harbors and exemptions, such as calls for health-care treatment offers.


In approving the rules, the FCC said robocalls were consumers' primary complaint to the agency, with more than 215,000 complaints filed in 2014.

ACA International, the industry group representing collection agencies, creditors, debt buyers and collection attorneys, said in its petition that the FCC's rule was arbitrary and capricious, and “results in an approach that does not comport with a caller's constitutional rights of due process and freedom of speech.”

Telemarketing companies, collection agencies and others are concerned that the FCC's rules will make it nearly impossible for them to do business without potentially risking serious fines under the TCPA. Attorneys representing the industries that filed the petition have predicted a significant uptick in litigation and compliance costs for U.S. companies (2015 TLN 9, 7/1/15).

Device Definition

On the question of what type of device constitutes an autodialer, the FCC said petitioners' contention that certain devices are exempt from the TCPA restrictions because they don't necessarily call random or consecutive telephone numbers “misreads the statute, which does not unambiguously impose any such requirement,” the FCC said.

The FCC said Congress made clear it intended the rules to apply to devices with the mere capacity of serving as autodialers, whether or not they were presently used that way.

“If Congress wanted to unambiguously address only devices with the present capacity to autodial numbers, there would have been no reason to use the word ‘capacity' at all,” the FCC said.

Intervenors supporting the FCC will file briefs by Jan. 22, while briefs from petitioners and their intervenors are expected by Feb. 16.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine in Washington at kperine@bna.com

For More Information


Text of the FCC's brief is at http://src.bna.com/b63.


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