ACA International v. FCC: Legal Challenge to FCC’s July 2015 Order: Reassigned Numbers

5 minute read

Upland Admin

To help our customers and readers have a stronger understanding of the Telephone Consumer Protection Act (“TCPA”) and how it relates to mobile marketing we’re taking a look at ACA Int’l v. FCC. Pending before the U.S. Court of Appeals for the District of Columbia, this case is an important legal challenge to the Federal Communications Commission’s (“FCC”) July 2015 Order covering significant interpretations of key provisions in the TCPA . We focus here on the arguments presented in ACA Int’l concerning how marketers are required to handle reassigned mobile numbers.

As we previously covered under our Keys to TCPA Compliance post, in July 2015 the FCC issued a significant order and declaratory ruling interpreting the TCPA, including clarifying whether marketers must address the reassignment of phone numbers for which consumers previously provided consent to receive text messages to that number (the “July 2015 Order”). The FCC declared 2 important rules for marketers to follow. Marketers must obtain consent “not of the intended recipient, but the current subscriber (or nonsubscriber customary user of the phone), and must prove the sufficient use of “caller best practices” to facilitate detection of reassignment. In addition, the FCC also created a limited “safe-harbor” for marketers providing one instance of contact to determine “actual knowledge of reassignment,” otherwise the marketer is deemed to have “constructive knowledge” of reassignment.

Quickly following the July 2015 Order, marketers and interest groups filed 9 separate petitions seeking federal court intervention to overturn the FCC’s July 2015 Order. These petitions have been consolidated into the first petition filed before the U.S. Court of Appeals for the District of Columbia, ACA Int’l Inc. v. FCC (No. 15-1211 and consolidated cases). Numerous parties have either intervened in support or filed amicus briefs, and the Court of Appeals heard lengthy oral arguments on October 19, 2016.

Petitioners contend that the July 2015 Order rested on a mistaken reading of the TCPA, arguing that if the intended recipient of a text message has consented, the TCPA does not impose liability. Petitioners further argued that as soon as the actual recipient of the calls objects, any further calls would trigger TCPA liability, as Congress intended. In opposition, the FCC argued that the July 2015 Order involved a tradeoff, and that the FCC could properly determine that consumers should not bear the risk of having to receive calls to reassigned numbers.

How will the Court of Appeals rule? Hard to say. Observers of the oral arguments opined that the judges’ questions showed concern with the workability of the FCC’s “safe harbor,” and were skeptical that one call can actually provide knowledge of reassignment (assuming that the one call is actually answered by a consumer). The key will be how the Court of Appeals chooses to balance the one call “safe harbor” with legitimate business concerns regarding an impractical system that does not provide a reliable way to ascertain if a mobile number has been reassigned.

When will the Court of Appeals rule? That is also an unknown. There is no set timetable (an opinion could publish 90 days or longer after the oral arguments in October 2016). Waterfall will continue to monitor for any published opinion from the Court and update this blog once the opinion is final. Until then, Waterfall continues to work with its clients to provide best practices to meet the current requirements under these new sections of the FCC’s interpretive ruling of the TCPA regarding reassigned numbers.

THIS IS NOT LEGAL ADVICE. This post is provided for informational and educational purposes only. You should not act or rely on the information provided without first seeking the advice of an attorney.

1 FCC 15-72 at p. 39 (paragraph 71) (“whether a caller making a call subject to the TCPA to a number reassigned from the consumer who gave consent for the call to a new consumer” is liable under the TCPA.”).
2 FCC 15-72 at pp. 39-42 (paragraph 72, 74-75) (“intended recipient” deemed too subjective a standard to allow for effective enforcement, consent of one party cannot be binding on another, and consumers who inherit wireless numbers neither expect nor desire these calls).
3  Id. at paragraph 72.
4  Id.  The caller bears the burden of demonstrating that he/she (i) had a reasonable basis to believe the caller had consent to make the call, and (2) did not have actual or constructive knowledge of reassignment prior to or at the time of the one additional call.
5  ACA Int’l filed its petition on July 10, 2015, the same day the FCC published the July 2015 Order.
6 Martin Cunniff, 6 Observations from D.C. Circuit Oral Argument in Appeal of FCC’s 2015 TCPA Order (Oct. 20, 2016),; Eric Troutman, The Eight (8) Things YOU Need to Know About This Week’s Big Oral Argument on the ACA Appeal of the FCC’s TCPA Omnibus Ruling (Oct. 21, 2016),

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