Client Alerts

D.C. Circuit Decision Restricts TCPA Litigation

By: Frances Floriano Goins

About: Consumer & Commercial Litigation

In a highly anticipated decision, the U.S. Court of Appeals for the D.C. Circuit Court recently issued a groundbreaking decision that impacts Telephone Consumer Sales Practices Act of 1991 (TCPA) litigation. At issue in the appeal was the Federal Communications Commission (FCC) 2015 Omnibus Declaratory Ruling and Order (FCC’s 2015 Order), which expanded the definition of “autodialer” and established a one-call safe harbor provision in dialing reassigned numbers.  

The TCPA prohibits the use of automatic dialers to call wireless telephone numbers without prior consent. The FCC’s 2015 Order expanded the definition of autodialer to systems that have the capacity or potential future capacity to autodial numbers. In his dissent to the 2015 Order, FCC Commissioner Pai noted that extending the definition to include potential future capacity resulted in making every smartphone an autodialer.   

To address the overbreadth of the autodialer definition, the D.C. Circuit analyzed the matter using the theoretical situation of a person sending a text message invitation to someone she recently met. As she would lack prior consent and her smartphone had the potential future capacity to autodial, her text would violate the TCPA. The Court expanded the analogy to the woman sending a group text inviting ten people to an event, subjecting her to damages of at least $5,000.  

Finding these hypothetical results to be unreasonable, the Court ruled that phone systems that do not currently have the ability to autodial are not subject to the TCPA.  

The D.C. Circuit also struck down the one-call safe harbor provision. Under the 2015 FCC Order, when a caller was unaware that a prior consenting party’s wireless number had been reassigned, the caller could make one post-reassignment call without facing liability. The Court noted, however, that it often takes more than one phone call or text to learn that a number is reassigned. The Court cited a case where an individual waited to file a TCPA suit until it had received 900 text alerts intended for the prior subscriber. The Court also noted that the FCC is currently seeking comments requiring service providers to report information about number reassignments. 

The number of TCPA lawsuits has increased dramatically in recent years. The Court’s ruling alleviates confusion as to whether a phone system qualifies as an autodialer and should curtail some future filings.