2018 wasn’t supposed to end like this.
With the long-awaited ACA Int’l ruling finally handed down—predictably overruling the FCC’s disastrous 2015 TCPA Omnibus Ruling—and with the fate of the TCPA seemingly resting in the confident hands of the FCC’s new Chairman—business-friendly Republican Trump-appointee Ajit Pai— it looked like large-scale TCPA litigation was headed to the dustbin of history. Yes, there would be some death throws—some DNC class actions and some overly-inventive forays into VOIP or delivery restriction cases— but the TCPA as we knew and hated would soon be dead.
Even when district courts went bananas and–instead of favoring the clean route of primary jurisdiction stays— decided to issue competing ATDS rulings by the barrel full, creating an unfathomable patchwork of decisions that required TCPAland to launch a live scoreboard to keep track of it all as if it were the first weekend of March Madness, even then the writing seemed to be on the wall. The divergent patchwork antics at the district court level only seemed to enhance the urgency and inevitability of an FCC decision that would give final and complete clarity. And with Chairman Pai at the helm the ruling had to–it just had to— put the TCPA genie back in the bottle.
But then Marks was handed down. And for the first time, there was doubt. Real sincere doubt, that the TCPA might not be going away after all. Predictably district courts began following Marks‘ extremely broad ATDS formulation, treating the novel Marks definition– that had never before been accepted or applied by any court– as if it was the only and proper reading of the TCPA. As if it was common sense to ignore key statutory language regarding random and sequential number generation. As if the entire legislative history of the TCPA–teeming with reference to telemarketing run amock and concerns over random-filing dialing– was wholly concerned with targeted precision dialing from a list leveraging technology that did not even exist when the statute was passed.
The FCC responded quickly and issued a Public Notice that cast doubt on the broad formulation of Marks in light of ACA Int’l, and that calmed many rattled nerves. But the days following Marks stretched to weeks and then months without the expected ruling from the FCC narrowing the TCPA. And so the question had to be asked– was the Commission taking the Marks formulation seriously? Had industry presented enough by way of evidence-filled comments to push back on the Ninth Circuit’s formulation?
Marks would soon be an afterthought for TCPA addicts, however. A far graver threat to TCPA calm suddenly appeared on the horizon–and one that no one saw coming. Last month, the Supreme Court granted cert. review in PDR to answer the most basic of all questions–does the FCC even have the authority to issue binding rulings respecting the scope of the TCPA under the Hobbs Act? The FCC’s ability to issue binding guidance on TCPA issues has been absolute TCPA bedrock since 2010. Four (4!) circuit courts of appeal have directly held that the FCC’s TCPA orders are binding under the Hobbs Act. None had ever held otherwise. Yet the SCOTUS saw fit to grant cert. on this issue no one disputed–and one that everyone now must doubt.
So even if the FCC did act to gut the TCPA after Marks, would it even be binding???
And with Kavanaugh now embedded on the Supreme Court might even Chevron deference be in jeopardy? Might we go from a legal environment where the FCC’s TCPA rulings are entitled to absolute deference to one in which courts can completely disregard the FCC’s rulings and decide for themselves whether or not to even credit the Comission’s TCPA determinations?
With these earthquakes of uncertainty shaking TCPAland to its core, the last thing we needed was more legislative emphasis on the TCPA. And that’s exactly what we’ve received.
Congress long-ago proposed amendments to the TCPA to broaden the scope to include dialers that call from a list, but those were Democratic initiatives unlikely to become law. A few weeks back however–right in the midst of TCPAland’s worst convulsions since 2015– a bi-partisan group of Senators elected to push “all in” on the TCPA. By proposing the TRACED Act, Senators on both sides of the aisle confirmed that the TCPA– with all of its gripping uncertainty and churning chaos– would remain the crown jewel of the U.S. government’s response to the robocall epidemic. Indeed, the legislation encouraged other federal agencies–including the CFPB and the Department of Homeland Security–to work with the FCC and FTC to enforce the TCPA like never before.
And that’s where we find ourselves.
A statute so vaguely worded that it almost certainly violates the First Amendment has been (or soon will be) elevated to the status of being the only federal statute over which any federal agency with an enforcement arm may jointly pursue regulatory enforcement activities simultaneously. (Indeed, if TRACED passes, the TCPA will be the single most broadly enforced federal statute in existence.)
Meanwhile the FCC –that was supposed to put an end to the chaos in the courts— has now had its authority called into question by SCOTUS and faces a bi-partisan bill directing it to increase–rather than de-fang– its TCPA enforcement efforts.
And all the while, TCPA suits skyrocket as the judicial-expansion of the statute by the Ninth Circuit takes root in courthouses across the country.
Sounds like the perfect storm. I hope you have really good TCPA counsel.
If not, I know a guy.
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