The Consumer Bankers Association (CBA) announced today that they have filed a petition for review of the Federal Communications Commission’s July 10, 2015 Declaratory Ruling and Order  in the United States Court of Appeals for the District of Columbia Circuit.

The Petition for Review details the various challenges to the FCC Ruling, alleging that the FCC acted arbitrarily and capriciously in the following elements of that order:

1)      FCC finding that the “capacity”  of an automatic telephone dialing system (ATDS) is “not limited to its current configurations but also includes its potential functionalities”

  1. Finding that the definition of an “ATDS” as any equipment for which “there is more than a theoretical potential that the equipment could be modified to satisfy the [ATDS] definition.

2)      FCC finding the term “called party” for purposes of the TCPA’s exemption for calls made with “prior express consent” as the current subscriber or customary user of the phone instead of the intended recipient of the call.

3)      FCC creating a “one-call” exemption for calls made to a telephone number for which the caller has been provided “prior express consent” but which number has subsequently been reassigned to a new subscriber and imposing liability for every call made to that number thereafter, whether or not the call was ever answered or whether the caller ever knew that the number had been reassigned.

4)      FCC finding that the TCPA does not allow callers to define the manner in which “prior express consent” may be revoked, even if the established methods for revocation are reasonable.

5)      FCC finding that text messages be treated as phone calls for purposes of the TCPA and that there should be no distinction between text messages and phone calls for assessing TCPA liability and applicability.

The CBA Petition will be consolidated with the prior Petitions filed by ACA International and others and will be heard as a single case before the Court of Appeals for the District of Columbia.

insideARM Perspective

insideARM will continue to monitor and report on this case and this issue that is critical to the industry. TCPA litigation continues to be an incredible cost to companies in this space. The long-term implications are significant. It was good to see the CBA jump into the fray.


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