The D.C. Circuit's Long-Awaited TCPA Decision: Litigation and Compliance Strategies

Following the FCC's expansive 2015 TCPA Order, TCPA litigation has become the second-most filed type of civil litigation in federal courts. On March 16, 2018 ,the DC Circuit finally issued its opinion in which it resolved certain issues but created uncertainty about other issues.

After thoroughly discussing the opinion, we will address the implications of the opinion and its potential impact on pending and future TCPA litigation:

• Litigation strategies for obtaining dismissal and summary judgment in TCPA cases, including:

  • Challenging the definition of an ATDS, particularly as it relates to predictive dialers

  • Challenging whether revocation was reasonable

  • Challenging whether a consumer may revoke contractual consent

• The future of TCPA rulemaking, including:

  • Defining the capabilities a system must have to be considered an ATDS

  • Re-examining the meaning of the word "capacity" as it relates to an ATDS

  • The role of human intervention, if any

  • Clarifying what counts as a "reasonable" revocation, including what constraints, if any, a company can contractually employ

• TCPA compliance strategies prior to further rulemaking