As the cherry blossoms prepare to bloom in Washington, D.C., our thoughts turn toward wondering when the D.C. Circuit will hand down its ruling in ACA International, et al v. FCC (Case No. 15-1211). This case, you will recall, is the consolidation of a number of appeals challenging the July 10, 2015, Order in which the FCC gave a very expansive reading to a number of provisions in the Telephone Consumer Protection Act (TCPA), long a thorn in the sides of businesses attempting to communicate with their customers by phone or text. Most notably, the Order provided a definition of an Automatic Telephone Dialing System (ATDS) that many feel went way beyond the statutory language the Order was purporting to interpret. Moreover, the Order afforded little satisfaction to businesses mistakenly dialing reassigned numbers. Our previous blog posts analyzing the Order and the Appeal predicted that the D.C. Circuit would most likely issue its decision in spring 2017.

And now, spring has sprung, the administration has changed, and so, too, has the chairman of the FCC. Chairman Wheeler, sometimes criticized for interpreting the law liberally to accomplish policy goals, is gone, and in his place is Ajit Pai, a commissioner in the Wheeler era, and now elevated to chair by President Trump. In summer 2015, Mr. Pai was one of two dissenters in the ACA Order; the other, Michael O’Reilly, remains a commissioner under Chairman Pai. Additionally, two of the three “yes” votes in ACA are now gone, with only Commissioner Clyburn still at the Agency, and the president seems in no hurry to fill the vacancies. In any event, filling those vacancies would likely not affect the current balance of power at the Commission.
Continue Reading Recent Open Meeting Foreshadows FCC Commissioners’ Views if ACA Decision Is Remanded