TCPA Litigation Update: Enduring Questions After the FCC's 2015 TCPA Declaratory Ruling

Introduction In the wake of the Federal Communications Commission's ("FCCs") comprehensive 2015 Declaratory Ruling and Order ("2015 Ruling"),1 which addressed numerous questions of interpretation under the Telephone Consumer Protection Act ("TCPA"),2 creditors and debt collectors have struggled with how to comply with the statute while still effectively communicating with their customers and debtors.3 While fending off an ever-increasing number of TCPA lawsuits,4 numerous corporations and industry groups, hoping to set aside key aspects of the 2015 Ruling, challenged it in the U.S. Courts of Appeals for the District of Columbia and Seventh Circuits5 as an unreasonable exercise of agency power.6 Meanwhile, federal courts issued inconsistent opinions addressing not only the substantive bedrocks of the statute-prior express consent and revocation7-but also procedural issues, such as standing and class action certification.8 Legal Challenges to the 2015 Ruling In response to the 2015 Ruling, the consumer credit industry-which had unsuccessfully petitioned the FCC for exemptions for debt collection calls to wireless numbers9-bolted to action. On July 10, 2015, the same day that the FCC released the 2015 Ruling, ACA International-the Association of Credit and Collection Professionals ("ACA")-petitioned the D.C. Circuit to review the 2015 Ruling.10 ACAs case was consolidated with eight other petitions for review.11 The joint petitioners argued that: the 2015 Ruling's definition of an "automatic telephone dialing system" as having the present or potential capacity "to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers"12 contradicts the ordinary meaning and...