What's on the Compliance Horizon for 2017?
2016 was a tough year for companies who were victim to TCPA, TSR and state regulatory cases. There are some reasons to think 2017 and beyond may not be quite so bad. For example, with the new presidential administration having appointed Commissioner Pai as the FCC's Chairperson, and given the current Republican majority on the Commission, we have good reason to expect FCC rulings over the next several years may be somewhat more reasonable and business friendly. Regardless of your politics, you should certainly like Commissioner Ajit Pai. Commissioner Pai is of course a proponent of the TCPA and is committed to fighting illegal robocalls. However, Pai strongly dissented to many of the FCC's recent rulings, including on the FCC's expansive definition of an autodialer, for example. Pai has made clear on several occasions that he thinks the TCPA has been misconstrued and has resulted in significant TCPA lawsuit abuse.
Also on the horizon is the impending decision in ACA Int'l v. FCC, currently before the DC Circuit Court of Appeals. Recall that a combination of 9 companies and trade associations sued the FCC in federal circuit court following the FCC's July 2015 ruling on autodialers, revocation of consent, and the reassigned number problem. That case was fully briefed in writing and a live, oral hearing was held in DC last October. The case is ripe for a decision now. Based upon some of the judge's questions during the hearing, I am hopeful that the industry will win on at least some of the issues in that case. For example, will the courts strike down the FCC's insufficient "one free pass" rule on the calling of reassigned number, or the impossibly harsh "future capacity" ATDS standard? Very possible and we will know any day now.
Finally, watch the recent FCC petition by Cunningham and Moskowitz under which they want to destroy implied "express consent" for automated non-marketing calls. These two petitioners are frequent serial TCPA plaintiffs. The FCC recently solicited comments on the petition. Under the Commission's new leadership, I won't be surprised at all when the Commission denies this petition - at least we hope! Stay tuned.
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