The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) recently denied a petition to review a 2020 Federal Communications Commission (FCC) order that permitted callers to place commercial non-telemarketing robocalls to residential phone numbers and that established uniform call limits for such calls. The D.C. Circuit’s decision ensures that consumers will continue to receive calls for important services, such as prescription refill reminders, power outage updates, and data security breach notifications.
In 1991, the U.S. Congress passed the Telephone Consumer Protection Act (TCPA), which prohibits the placement of robocalls to residential phone numbers “without the express consent of the called party.” The FCC later exempted from the TCPA’s requirements certain commercial non-telemarketing calls, which are commercial calls that do not contain advertising or solicit the purchase of goods or services, such as debt collection calls, informational calls from broadcasters, and HIPAA-related calls to residential numbers.
In 2019, Congress passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, which directed the FCC to issue rules setting clear parameters for TCPA exemptions, including (1) the parties that may make exempt calls, (2) the parties that may be called, and (3) the number of exempted calls that a party can make per month. A year later, the FCC issued an order (FCC Order) that amended the exemption for commercial non-telemarketing calls to incorporate the three TRACED Act parameters. In so doing, the FCC established a uniform monthly call limit of three commercial non-telemarketing robocalls per caller to any residential number and provided consumers the option to opt out of receiving unwanted commercial non-telemarketing robocalls.
Shortly after the adoption of the FCC Order, a petitioner sued the FCC in the D.C. Circuit, alleging that (1) the FCC acted arbitrarily and capriciously in creating an overly broad TCPA exemption for all commercial non-telemarketing calls, and (2) debt collection calls and calls from broadcasters notifying the call recipient of a free broadcast should not be exempt from the TCPA as commercial non-telemarketing calls. The D.C. Circuit rejected these arguments.