Home / General News / 10 Industry Experts Weigh in on Impact of ACA v. FCC, One Year Later

10 Industry Experts Weigh in on Impact of ACA v. FCC, One Year Later

I’m a little late to the party, but better late than never. The ruling from the Court of Appeals for the D.C. Circuit in ACA International v. FCC turned one earlier this month, and in honor of its first birthday, AccountsRecovery.net reached out to a number of industry luminaries and asked for their perspective on the impact of the ruling on the credit and collection industry. Those who responded could choose to offer their own insights, or answer one (or more) of a series of questions that were posed to them to give them some idea of what to talk about. Those questions were:

  • Is the credit and collection industry better or worse off now than it was a year ago, in relation to the TCPA?
  • Did the ruling in ACA v. FCC have the impact you thought it would? Why/why not?
  • What has surprised you most about the changes to the industry in the year following the ruling?
  • Do you still view the ruling as a victory for the industry? Why/why not?

What follows are their unedited responses.

Rick Perr, Partner, Fineman Krekstein & Harris
Happy Birthday, ACA v FCC!!! The decision issued by the United States Court of Appeals for the DC Circuit may have been the most impactful case for the ARM Industry in recent memory. It upended the expanding cloud of radical regulatory enforcement and restored some sanity in legislative interpretation. In fact, post-ACA v FCC, courts, including the United States Supreme Court have returned to a more strict statutory construction of consumer statutes. There is no doubt that, specifically, the ARM Industry is better off as a result of the case, and it has led to many other court opinions rejecting TCPA claims brought by consumers. While there are some outliers (I’m talking about you, Ninth Circuit), in whole, it has stemmed the tide and remains a beacon of hope that the FCC will in the future issue a practical ruling on ATDS and wrong-party calls.

Mark Neeb, CEO, ACA International
Is the credit and collection industry better or worse off now than it was a year ago, in relation to the TCPA?
ACA continues to work diligently on a three pronged judicial, regulatory and legislative approach to ensure that the industry is better off going forward. The ACA D.C. Circuit decision was a major step forward in launching TCPA reform support from Congress and forcing the FCC to consider its previous actions. We’ve seen courts rule differently on this issue over the last year at times even ignoring the D.C. Circuit, confirming our position that the accounts receivable management industry is ripe for frivolous, unnecessary litigation and TCPA reform from the FCC is essential.

While a major event, the D.C. Circuit decision was just one of many favorable outcomes ACA has been involved in through our Industry Advancement Program. Since 2013, ACA’s Industry Advancement Program has delivered industry-favorable outcomes in 45 times including 15 last year, which have been cited and relied upon by courts across the country in more than 5,100 cases.

Did the ruling in ACA v. FCC have the impact you thought it would? Why/why not?
Historically, the FCC has taken extreme liberties in interpreting the TCPA to the point that a device such as an iPhone could be considered an autodialer. We need clarity to ensure that an autodialer does not include all predictive dialers, and the ACA decision is forcing the FCC to reconsider the broad definition from 2015 since it was struck down as arbitrary and capricious.

What has surprised you most about the changes to the industry in the year following the ruling?
ACA International is disappointed that the FCC has allowed another year to pass without resolving clarity issues related to the TCPA. Without clear guidance, ARM professionals and thousands of other businesses remain stalled in their attempts to contact consumers to provide important information related to financial and other exigent matters.

Do you still view the ruling as a victory for the industry? Why/why not?
Absolutely, the ruling was a victory for ACA International and the industry as it forced the FCC to address this tremendously important issue concerning the definition of an autodialer. ACA International led the way in ensuring that we – on behalf of our 2,500 members – were named the party plaintiff. The case is known throughout legal circles and Washington, D.C., as the “the ACA case.”

Joann Needleman, Partner, Clark Hill
ACA International v. FCC was a significant win for the industry and I applaud ACA for its guts, tenacity and willingness to devote the necessary resources to lead the effort. The FCC’s 2015 Declaratory Ruling was the epitome of federal agency overreach. The D.C. Circuit had no difficulties in recognizing that the FCC’s interpretation of the TCPA as it relates to the definition of an ATDS and the one-call safe harbor were not only arbitrary and capricious, but divorced in reality.

Despite the win for the industry, the battle for clarification of the TCPA is as contentious as it has ever been on several fronts. First, despite a favorable outcome in the D.C. Circuit, the Court’s opinion left open a lot of room for interpretation, especially in regard to whether the holding struck down prior definitions of predictive dialers. There still is an immense split of opinion among both the district and circuits courts nationwide as to whether the ACA decision is dispositive on that issue. This lack of precedent and consistency has ultimately resulted in more, not less litigation. Furthermore, the/Marks/decision by the 9th Circuit threw another match into the fire by completing redefining the definition of a predictive dialer.

Second, while the industry certainly applauded the D.C. Circuit’s smack down of the FCC, the holding left industry in a vacuum and the definition of what it means to be an ATDS is still undecided. While the FCC has issued several proposed rulemakings in the last year, including a specific request for information shortly after the D.C. Circuit’s ruling, industry is still prejudiced by the lack of definitive rules or guidance. Again, the result has been more, not less, litigation and courts have been unwilling to stay matters pending rules from the FCC.

Finally, Congress has taking notice of the FCC’s lack of responsiveness to the illegal robo-call issue, post ACA. Numerous bills were introduced at the end of last session but many were partisan efforts. In the 116th Congress, even more bills have been introduced but it is scary to note that many are bi-partisan and some are getting a lot of traction. It is quite possible that before the FCC has time to act on the TCPA, legislation will supersede their efforts. This could mean harsher and more onerous penalties for legitimate callers.

I never discount victories. The ACA v. FCC case gave the industry an significant seat at the table, but it did not end the battle.

Tom Good, Managing Partner, Barron & Newburger
Is the credit and collection industry better or worse off now than it was a year ago, in relation to the TCPA?
I think the industry in undeniably better off than it would have been had the 2015 regulations been upheld. Also, to the extent that collection agencies have focused on improvements in their policies and procedures, focusing on managing consents and recognizing when consumers have withdrawn that consent, the industry is better off.

Did the ruling in ACA v. FCC have the impact you thought it would? Why/why not?
Yes it did. I always viewed this case as less of a total victory and more of a catastrophic loss avoidance. Striking the FCC Declaratory Ruling and Order did not immediately create an industry friendly TCPA. If a judge was previously inclined to read the TCPA expansively, this decision has not been a serious impediment to that inclination. But, remember, the huge victory is found because an absolutely industry unfriendly regulatory order is not still in place.

What has surprised you most about the changes to the industry in the year following the ruling?
The most surprising thing to me is that there have been a series of industry members who appear to act as if the TCPA is a dead letter after this case. Don’t overread the impact of this case no matter how much we may be grateful for it. The basics of TCPA compliance remain the same. Receive consent to call cell phones from an autodialer. Know when that consent ceases to be effective. Be conservative in your operational approaches.

Do you still view the ruling as a victory for the industry? Why/why not?
Absolutely. Can anyone seriously think that the industry would be better off with the 2015 FCC Declaratory Order in place. I can’t. It’s just important though not to assume a bigger impact than it really made.

Jay Gonsalves, CEO, Action Collection Agency
Is the credit and collection industry better or worse off now than it was a year ago, in relation to the TCPA?
With the many circuit splits we have seen on this issue since last year, and since the FCC has not yet acted on the issues remanded to it by the D.C. Circuit, a lot of confusion remains about TCPA compliance. This unfortunately means litigation has not slowed significantly in this area and those of us in the credit and collection industry remain at risk for frivolous litigation. As FAC chair at ACA, we have made TCPA reform a focus in both Congress and at the FCC, and have gained a lot of support for more clarity from Members of Congress and other agencies including the Treasury, Small Business Administration, and the CFPB.

Did the ruling in ACA v. FCC have the impact you thought it would? Why/why not?
It depends on how the FCC acts and if it provides the clarity that has been requested by dozens of stakeholders, not least of which is providing an appropriate definition of an auto dialer that does not sweep in all predictive dialers and all applications.

What has surprised you most about the changes to the industry in the year following the ruling?
The rise of illegal robocalls over the past year, which are really a separate issue, has muddied the waters for seeking clarity in this area. No one likes illegal robocalls, but that doesn’t lessen the need for solving the problem with frivolous litigation resulting from unclear TCPA requirements.

Do you still view the ruling as a victory for the industry? Why/why not?
Yes, the FCC has to act on the issues remanded to it. If we had not won in court – and even with the changes in the Administration, the FCC still might not have been forced to address TCPA again so soon after the 2015 Order.

Eric Troutman, Partner, Squire Patton & Boggs
Without question the D.C. Circuit Court of Appeal could have helped prevent all of the chaos unleashed by its ruling had it waded just a couple of inches deeper into the fray. But it elected to be deferential to the FCC and the agency simply has not acted fast enough to avoid dire impact. In the meantime, district courts are applying 5 different ATDS formulations. Congress is considering 5 different “robocall” enactments including 4 that will amend the TCPA. And to the extent any narrowing of the TCPA’s scope has been effectuated, the expansion of the persons subject to the act continues with platform providers and corporate officers now facing direct liability for TCPA violations. It’s just a mess out there. Unfortunately, though, it must be said that the legacy of the ACA Int’l ruling at this point–just over a year after it was handed down– is one of incompleteness and confusion.

I can’t help but wonder what might have been.

Stefanie Jackman, Partner, Ballard Spahr
Is the credit and collection industry better or worse off now than it was a year ago, in relation to the TCPA?
I would say it is both. The reality is that the credit and collections industry remains in a state of suspended animation, patiently and hopefully waiting for the end of the story to be written. On the one hand, the ACA opinion helped to stem the unrelenting flood of TCPA litigation that followed in the wake of the 2015 FCC Order’s expansive TCPA rulings. But on the other hand, much debate (and litigation) ensued over what, if anything, the ACA opinion actually accomplished. Did it overturn prior FCC guidance or not? Does a system have to utilize its automatic dialing capacity to be covered by the statute or not? What about consent – do I have it or not? In punting these issues back to the FCC, the ACA opinion allowed additional time to pass, during which Marks. v. Crunch came down. Courts and arbitrators began trending away from the Second Circuit’s decision in Reyes. Court reached divergent decisions on virtually indistinguishable facts, leaving litigants to guess whether this court or this arbitrator would agree with their view of the current state of the law. A year after the ACA decision, the industry is still waiting for specific clarification on what constitutes an automatic telephone dialing system. It is still waiting for concrete guidance on issues relating to consent and revocation. It is still facing significant TCPA litigation. The simple fact is that the TCPA remains as potentially catastrophic to the industry as it ever was. But unlike before, now, there is a timeline for answers – there may be potential relief on the horizon– if we can all just hang on a little longer.

Scott Wortman, Partner, Blank Rome
In view of the vast library of exhaustive point-by-point resources interpreting this case, I’ll forgo the legal jargon and instead plainly state my own subjective views beyond the four corners of the decision.

The FCC’s 2015 Declaratory Ruling and Order was not a reasonable reading of the TCPA, and the regulations did not actually protect anyone from real harm. Instead it was a grotesque impersonation of those things. Whether based on ideological confidence, hubris or just unbridled ambition, the FCC rulemaking was simultaneously the apogee of that approach and the nadir of its role as a regulator. Prior to this case, it was my opinion that we would only be successful in reducing politically advantageous demonization and false narratives through education and working to find common ground. While I still strongly believe in that approach, ACA’s lawsuit against the FCC reminded all of us that a regulator cannot usurp the role of the court as the fundamental arbiter of justice, and that not every perceived ailment afflicting society may be redressed by regulators posing as legislators. Indeed, notwithstanding the pathological stigmatization of this industry, courts will listen when we pool resources and ideas, standing together as one. In conclusion, the next time a regulator develops a solution in search of a problem, let us reflect on what ACA accomplished and consider the power of determination and unity.

Michael Lamm, Managing Partner, Corporate Advisory Solutions
I definitely view it as a win for the industry as it finally put the issue on the map and made the regulators focus on the impact TCPA is having on the industry. I think as we look back on this ruling it will be viewed as a catalyst that led to reform.

My hope is that as new rules come out from the CFPB that will help to move along TCPA reform too.

Kelly Knepper-Stephens, Vice President – Legal & Compliance, TrueAccord
The ruling in ACA v. FCC received a lot of buzz (including recent mention in the March Telemarking episode on John Oliver’s “Last Week Tonight”). But the ACA decision hasn’t really provided the relief or guidance necessary for call centers in need of a concrete definition of ATDS. The court punted that question back to the FCC without providing an answer. The more recent Ninth Circuit’s Marks v. Crunch decision and the subsequent settlement of the case before the Supreme Court could weigh in with a uniform definition creates a circuit split over the definition of ATDS. Those making calls to Ninth Circuit consumers should carefully review the decision and tailor the dialing system to meet it’s requirements, even if previous decisions in different circuits gave a level of comfort to systems with manual intervention. Unfortunately, the endless damage scheme of the TCPA mandates this approach until the FCC provides some clear future guidance.

Check Also

CFPB Logo

CFPB Makes Appearance During Dem Debate

As Kathy Kraninger, the director of the Consumer Financial Protection Bureau, is scheduled to testify …

Leave a Reply

Your email address will not be published.

X
Skip to toolbar