We have previously reported on ACA International's appeal from the Federal Communications Commission's July 2015 Order interpreting the Telephone Consumer Protection Act of 1991 ("TCPA") in the United States Court of Appeals for the District of Columbia Circuit, including the joint brief recently filed by petitioners on November 25.
In addition to that joint brief, "economic heavyweights including retailers, banks, lending institutions, Internet companies and utility companies" filed amicus curiae briefs in support of the appeal. An amicus curiae brief, which literally translates to "friend of the court," allows non-parties an opportunity to inform and persuade the Court regarding the broader implications of its eventual decision.
Eight separate amicus briefs were filed on behalf of seventeen agencies and nine businesses and organizations. These filers include the American Bankers Association, Independent Community Bankers of America, American Gas Association, American Financial Services Association, Consumer Mortgage Coalition, Mortgage Bankers Association, National Association of Chain Drug Stores, and National Association of Federal Credit Unions.
The brief from amici Retail Litigation Center, Inc.; National Retail Federation; and National Restaurant Association argued, "Instead of interpreting the statute in commonsense ways that would have protected consumers without imposing impractical obligations on businesses seeking to communicate with their consenting customers using modern technologies, the FCC majority did the opposite. On issue after issue, the FCC majority adopted interpretations of the decades-old statute divorced from today's technological and commercial realities. The result will be even more litigation, much of it seeking significant money penalties from businesses for their failure to do the impossible."
The FCC is expected to respond by January 15, 2016. It will be interesting to see how the FCC responds to these arguments as the issue makes its way through the appeals process. The arguments on both sides should provide clarity regarding strategies to defend TCPA claims, including the usefulness of motions to stay pending the appellate decision.
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