The Retail Litigation Center (RLC), the National Restaurant Association and the National Retail Federation have filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit, urging the court to vacate two provisions of the Federal Communications Commission’s (FCC’s) July 2015 Order.
The order in question reinterprets the obligations of businesses under the Telephone Consumer Protection Act (TCPA). The retailers argue that the FCC’s Order encourages lawyer-driven litigation that threatens the ability of retailers to engage in legitimate business communications with consumers.
Signed into law in 1991, the TCPA aimed to protect consumers from unwanted, harassing “robo-calls.” However, last summer, the FCC issued a ruling that dramatically disrupted the important balance that the TCPA strikes between protecting consumer privacy and the opportunity for businesses to conduct legitimate commercial communications.
Specifically, the Order holds callers liable for calls or texts unknowingly placed to “recycled” numbers that have been reassigned by a wireless carrier from a consumer who provided consent to a new consumer who has not provided consent. The Order also prevents businesses from maintaining a standard procedure for consumers to opt-out of messages.
According to the brief:
“Retailers endeavor to provide their customers with the information they want, when and how they want it. Properly construed, the TCPA should be no barrier to such consented-to communications. The Commission, however, has interpreted the statute in ways that will chill such beneficial communications, while arbitrarily subjecting retailers and other legitimate businesses to liability for good-faith conduct.”
“On issue after issue, the FCC adopted interpretations of the statute divorced from technological and commercial realities. The result will be even more litigation, much of it seeking to recover significant damages from businesses for their failure to do the impossible.”
“The fact that the FCC made the straight-faced suggestion that businesses should sue their own customers for failure to update their contact information shows just how far afield from commercial realities the agency has traveled when construing the TCPA.”
“Agency action that imposes impossible standards of conduct is the epitome of arbitrary and capricious decision making.”
The brief was drafted by Joseph R. Palmore and Seth W. Lloyd of Morrison & Foerster LLP.