Every company engaged in telephone or text message solicitation, advertising, and/or customer notification should be aware of the Telephone Consumer Protection Act (TCPA). Enacted in 1991, the TCPA was intended to address consumers’ concerns with receiving undesired telemarketing calls. To that end, the TCPA generally bans the use of automated dialing equipment to call wireless telephone numbers without having the recipient’s prior consent. In furtherance of this goal, Congress granted the Federal Communications Commission (FCC) the power to create regulations and orders interpreting the TCPA. In 2015, the FCC promulgated an order that broadly interpreted the TCPA’s statutory language (the 2015 Order). Since the 2015 Order, the rate at which TCPA class actions have been filed has skyrocketed—and so too have the settlement amounts that companies have paid to resolve these cases.
In March, the U.S. Court of Appeals for the District of Columbia Circuit released its long-awaited, unanimous opinion in ACA International, which reviewed the validity of the 2015 Order. Although it confirmed some aspects of the 2015 Order, ACA International set aside two key provisions of the 2015 Order that will have a wide-ranging impact on TCPA consumer class actions and will create uncertainty in this sphere until the FCC provides further guidance.
