The United States Court of Appeals for the District of Columbia Circuit (DC Circuit) recently denied a motion to review a 2020 Federal Communications Commission (FCC) order that allowed callers to make robocalls commercial non-telemarketing to residential telephone numbers and which established uniform calling limits for such calls. The DC 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 US Congress passed the Telephone Consumer Protection Act (TCPA), which prohibits the placing of robocalls to residential telephone numbers “without the express consent of the called party”. The FCC later exempted from TCPA requirements certain non-telemarketing commercial calls, which are commercial calls that do not contain advertising or solicit the purchase of goods or services, such as debt collection calls , broadcaster information calls, and HIPAA-related calls to residential numbers.

In 2019, Congress passed the Robocall Telephone Abuse Criminal Enforcement and Deterrence (TRACED) Act, which directed the FCC to issue rules defining clear parameters for TCPA exemptions, including (1) parties who can make calls exempt, (2) the parties that can be called, and (3) the number of exempt calls a caller can make per month. A year later, the FCC issued an order (FCC Order) changing the exemption for non-telemarketing commercial calls to incorporate the three parameters of TRACED. In doing so, the FCC established a uniform monthly call limit of three commercial non-telemarketing robocalls per caller to any residential number and offered consumers the option of opting out of receiving unwanted commercial non-telemarketing robocalls.

DC circuit decision

Shortly after the FCC’s order was passed, a plaintiff sued the FCC in the DC circuit, alleging that (1) the FCC acted arbitrarily and capriciously in creating an overly broad TCPA exemption for all non-telemarketing commercial calls, and (2) debt collection calls and calls from broadcasters advising the recipient of the call of a free broadcast should not be exempt from the TCPA as non-telemarketing commercial calls. The DC Circuit rejected these arguments.

According to the DC Circuit, the FCC’s retention of the exemption for non-telemarketing commercial robocalls was neither arbitrary nor capricious, as the FCC chose to preserve this exemption only after concluding that it reflected the self-interest public by “enabling companies to communicate with their customers on important topics”. questions.” The DC Circuit further asserted that the FCC’s decision was particularly reasonable in light of the privacy safeguards contained in the FCC’s order, namely (1) setting a limit on the number of commercial non-telemarketing robocalls that an entity may make and (2) allowing consumers to opt out of such calls. These safeguards have allowed the FCC to balance consumers’ desire for privacy with their interest in obtaining information important.

The DC Circuit also found that the petitioner was precluded from arguing that debt collection and broadcaster appeals should not be exempt from the TCPA because those exemptions were codified in 1992 and 2003, respectively. Although individuals can request a review 60 days after the FCC issues an order if an agency reopens and reconsiders a matter already decided, the DC Circuit found that the FCC’s order did not reopen the issue of exemptions. for the non-telemarketing commercial robocall subcategories and instead only considered changes to all non-telemarketing commercial robocalls in general.

Impact on industry

The DC Circuit’s decision ensures that the FCC’s exemption for non-telemarketing commercial robocalls remains unaffected. In practice, this means that robocalls to residences that provide important information regarding health care, power outages and data breaches remain exempt from the TCPA as long as the calls do not contain advertising or do not constitute telemarketing.

The decision also upheld the FCC’s uniform approach to call limits for non-telemarketing commercial robocalls. By setting a limit of three calls per month for all types of non-telemarketing commercial robocalls, the FCC chose to apply the same numerical limit for debt collection calls, for example, to HIPAA-related calls. or any other subcategory of commercial non-commercial calls. – automated telemarketing call. The FCC’s three-call limit is also per caller (not per non-telemarketing commercial robocall subcategory), meaning an entity can only make three non-telemarketing commercial robocalls per month to a residence. particular, whatever the objective(s). for which it places non-telemarketing commercial robocalls. And if even three of those calls are too many, the FCC’s requirement that callers honor recipient opt-out requests means consumers have more control than ever over the information they receive from commercial entities.

The authors would like to acknowledge the contributions of Summer Associate Courtney Otto to this update..

[View source.]