D.C. Circuit Issues Partial Reversal of Wheeler-Era Robocall Decision

The US Court of Appeals for the DC Circuit has decided that not every smartphone is an autodialer subject to the restrictions of the Telephone Consumer Protection Act (TCPA). In a decision released March 16, the court reversed a 2015 Federal Communications Commission decision that robocalls to numbers of consenting parties that were subsequently transferred to nonconsenting parties violated the TCPA as well as the FCC's definition of the autodialers (automatic telephone dialing system, or ATDS) that can't be used without the call (or text) recipient's prior permission.

The court found the FCC's definition of autodialers (something with the "capacity" to autodial) to reach "any and all smartphones," as well as downloadable apps and software additions, was "expansive," adding: "If every smartphone qualifies as an ATDS, the statute's restrictions on autodialer calls assume an eye-popping sweep." That is because the TCPA bars the use of an ATDS (so, theoretically any smartphone) from making any calls or text messages without prior consent, levying a $500 fine per violation. And that applies whether or not any autodialer software was use

The TCPA cannot reasonably be read to render every smartphone an ATDS, said the court, so that any smartphone user would be in violation of federal law every time they made a call or sent a text without first getting permission. The court let stand the FCC's decision that a party can revoke consent to robocalls through "any reasonable means" and the scope of the FCC's exemption for relaying time-sensitive, health-related info. Current FCC Chairman Ajit Pai, who dissented from that 2015 decision, and whose dissent the court quoted in its decision, was pleased.