SCOTUS Leaves Big Questions About State of TCPA Rules: Lawyers
Telephone Consumer Protection Act and marketing lawyers see Friday's U.S. Supreme Court decision on the deference that lower courts are to give the FCC over telemarketing issues (see 2506200053) as potentially resetting decades of TCPA precedence by the agency.
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FCC interpretations of TCPA "will still be powerful forces to overcome in court, but you can expect new (and creative) legal arguments from both defendants and plaintiffs" in the wake of SCOTUS's McLaughlin decision, wrote Spencer Elg, What If Media Group's general counsel. The former FTC lawyer said Monday that the TCPA landscape is shifting "given this monumental decision."
The high court's ruling could mean huge changes in the spiraling amount of "quiet hours litigation" -- class-action suits filed against marketers for telephone solicitations sent before 8 a.m. or after 9 p.m., Eric Troutman of Troutman Amin wrote Monday. The quiet-hours rules aren't in the TCPA itself but come from its regulatory implementation, and in the wake of McLaughlin, courts might not have to apply the FCC-generated requirement, Troutman said. Quiet-hours rules come from the commission's implied authority to implement the TCPA and "is precisely the sort of action the Supreme Court has just held is subject to review by district courts." Since the FCC "just made these rules up with no input from Congress," he said many courts will be willing to strike them down.
Companies facing TCPA litigation now can't rely on favorable FCC interpretations as an automatic shield in federal court, but they have an additional opportunity to challenge unfavorable ones, Marashlian & Donahue's Jonathan Marashlian wrote. The decision also opens the door for courts having a different interpretation of the TCPA and what it requires, even if that interpretation runs contrary to the FCC's official position in enforcement proceedings, he said.
As a result, defendants have new opportunities to challenge unfavorable agency rulings, Marashlian said, adding that there are also uncertainties about how courts will interpret critical TCPA provisions that businesses have long relied upon for compliance guidance. District courts now have to give "appropriate respect" to FCC interpretations of the TCPA in enforcement proceedings, but that's well short of binding deference, he said.
On remand, the district court will now have to determine whether online fax services fall within the TCPA’s definition of a “telephone facsimile machine" -- which was the key issue in the FCC order being challenged in court, Greenspoon Marder lawyers Jeffrey Backman and Roy Taub wrote. The commission's various orders interpreting the TCPA on a host of issues during the past three decades "appear to now potentially be subject to re-examination in district court."