D.C. Circuit Rolls Back FCC's 2015 TCPA Rules

On March 16, 2018, the D.C Circuit issued a decision invalidating portions of the FCC's 2015 TCPA Omnibus Declaratory Ruling and Order. Notably, the decision overturns as "arbitrary and capricious" the FCC's definition of an automated telephone dialing system ("ATDS") and the one-call safe harbor for calling a phone number that has been reassigned to a non-consenting person. The decision was not a complete victory for businesses as the D.C. Circuit sustained the FCC's order on both consumers' ability to revoke consent and the scope of the "time-sensitive healthcare call" exemption.

The FCC's Definition of ATDS is Arbitrary and Capricious

In the 2015 Order, the FCC defined an ATDS as equipment that contained the potential "capacity" to dial random or sequential numbers, even if that capacity could be added only through specific modifications or software updates, so long as the modifications were not too theoretical or too attenuated. In crafting this