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March 31, 2017

D.C. Circuit Ruling a Small Step Forward on FCC Overreach, But Big Test Looms

Today, the D.C. Circuit court struck down a Federal Communications Commission (FCC) decision requiring opt-out notices on solicited faxes. The court ruled that the agency lacks the authority to regulate communications sent with the recipient’s consent under the Telephone Consumer Protection Act (TCPA). 

The ruling is a small step forward to curb the FCC’s overreach under the TCPA. In recent years, the FCC has overstepped its authority by restricting legitimate, good faith communications from businesses to customers who previously gave their permission to be contacted.

Despite today’s ruling, a much larger test awaits. Currently, the D.C. Circuit is weighing whether a 2015 FCC order which put arbitrary limits on communications between business and their customers overstepped the agency’s authority under the TCPA.

Because the TCPA is increasingly the basis for meritless class actions that seek crippling damages of up to $1,500 per call against businesses of all sizes and types, the damage they inflict is significant. 

Moreover, the number of TCPA lawsuits filed around the country last year hit an all-time high at 4,860—with a 1,272 percent increase in TCPA case filings since 2010.The FCC’s actions have only added more fuel to the fire. 

While today’s ruling signals incremental progress, it remains to seen what the D.C. Circuit will do on broader FCC overreach. 

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