Appeals Court Loosens TCPA Straitjacket

A ruling on Friday by the U.S. Court of Appeals for the District of Columbia has mitigated the effect of draconian changes to the TCPA laws, introduced by the FCC in 2015 and the subject since of numerous interventions by research bodies and other aggrieved parties.

The laws were introduced in June 2015 by FCC Chairman Tom Wheeler, and were immediately slammed by the MRA as posing a serious threat to the business of telephone research in the US. Despite this and other criticism the new definitions and extensions were approved and companies including Gallup immediately felt their impact. Appeals were lodged and nearly two and a half years later the D.C. Court has given its conclusions on four specific areas.

One particularly contentious issue was the FCC's definition of an automatic telephone dialing system (an ATDS or autodialer), which according to some was sufficiently broad to include almost any telephone manufactured since the 1970s. The appeal Court ruled against this extension, rejecting the idea that 'a call made with a device having the capacity to function as an autodialer can violate the statute even if autodialer features are not used to make the call'. It also rejected the FCC's notion that a call violates the TCPA if made to a phone number that has been reassigned, after a previous owner gave consent: the FCC had allowed one call in such cases, for the caller to establish that consent was no longer given, but the Court ruled that this limitation was arbitrary, as in many cases a first call will not establish that the phone has been reassigned.

On two other issues, the FCC's changes were upheld: its broad definition of individuals' revocation of consent - a called party may revoke consent 'at any time and through any reasonable means' that clearly expresses a desire not to receive further messages; and the scope of its exemption of certain healthcare related calls from the TCPA's prior-consent requirement for calls to wireless numbers - calls with a healthcare treatment purpose were exempted, while calls related to telemarketing, solicitation, or advertising were not, and this remains in place.

DRNO will report on further developments and the reaction of research bodies when possible.