In an amicus brief filed in the U.S. Court of Appeals for the District of Columbia Circuit, the Retail Litigation Center (RLC), the National Restaurant Association and the National Retail Federation urge the court to vacate two provisions of the Federal Communications Commission's (FCC's) July 2015 Order that reinterprets the obligations of businesses under the Telephone Consumer Protection Act (TCPA). The retailers argue that the FCC's Order encourages lawyer-driven litigation that threatens the ability of retailers to engage in legitimate business communications with consumers.
Signed into law in 1991, the TCPA aimed to protect consumers from unwanted, harassing "robo-calls." However, last summer, the FCC issued a ruling that dramatically disrupted the important balance that the TCPA strikes between protecting consumer privacy and the opportunity for businesses to conduct legitimate commercial communications.
Specifically, the Order holds callers liable for calls or texts unknowingly placed to "recycled" numbers that have been reassigned by a wireless carrier from a consumer who provided consent to a new consumer who has not provided consent. The Order also prevents businesses from maintaining a standard procedure for consumers to opt-out of messages.
According to the brief:
"Retailers endeavor to provide their customers with the information they want, when and how they want it. Properly construed, the TCPA should be no barrier to such consented-to communications. The Commission, however, has interpreted the statute in ways that will chill such beneficial communications, while arbitrarily subjecting retailers and other legitimate businesses to liability for good-faith conduct."
"On issue after issue, the FCC adopted interpretations of the statute divorced from technological and commercial realities. The result will be even more litigation, much of it seeking to recover significant damages from businesses for their failure to do the impossible."
"The fact that the FCC made the straight-faced suggestion that businesses should sue their own customers for failure to update their contact information shows just how far afield from commercial realities the agency has traveled when construing the TCPA."
"Agency action that imposes impossible standards of conduct is the epitome of arbitrary and capricious decisionmaking"
The brief, drafted by, Joseph R. Palmore and Seth W. Lloyd of Morrison & Foerster LLP, can be read here.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.
Founded in 1919, the National Restaurant Association is the leading business association for the restaurant industry, which comprises one million restaurant and foodservice outlets and a workforce of 14 million employees. The Association represents the industry in Washington, D.C., and advocates on its behalf. Despite being an industry of predominately small businesses, the restaurant industry is the nation's second-largest private-sector employer, employing about 10 percent of the U.S. workforce.
NRF is the world's largest retail trade association, representing discount and department stores, home goods and specialty stores, Main Street merchants, grocers, wholesalers, chain restaurants and Internet retailers from the United States and more than 45 countries. Retail is the nation's largest private sector employer, supporting one in four U.S. jobs – 42 million working Americans. Contributing $2.6 trillion to annual GDP, retail is a daily barometer for the nation's economy. NRF's This is Retail campaign highlights the industry's opportunities for life-long careers, how retailers strengthen communities, and the critical role that retail plays in driving innovation. NRF.com