The FCC implements the TCPA through its rulemaking and assists the courts in interpreting the TCPA through its rulings. But the FCC’s most recent rulings have only added fuel to the fire of TCPA litigation. The FCC’s 2015 Omnibus Declaratory Ruling and Order (FCC Order) further expanded the sweep and scope of the TCPA. Most significantly, it expanded the definition of “automatic telephone dialing system” (i.e., autodialer) to such an extent that the TCPA now arguably applies to nearly any modern telecommunications device (including smart phones). The FCC Order also included several other rulings and clarifications that generally favored consumer interests over business interests. These rulings spurred a court challenge, which led to oral arguments before the D.C. Circuit in October 2016. Many of the questions at oral argument indicated skepticism of the FCC’s interpretation of the TCPA, particularly the FCC’s broad definition of an “autodialer,” and hinted that the court may send the FCC back to the drawing board. That decision remains pending.
Regardless of how the D.C. Circuit rules, the FCC may take a fresh look at the TCPA on its own initiative. The FCC Order was implemented under the former chairman of the FCC, Tom Wheeler, a Democrat appointed by President Obama. Chairman Wheeler stepped down in January of this year and President Trump immediately elevated Republican Commissioner Ajit Pai to the chairman position. Due to one other recent departure by a Democrat, the FCC, which is ordinarily directed by five commissioners, currently has two Republican commissioners to just one Democrat. With a Republican president making future appointments, the FCC will remain in Republican hands for at least four years.
Pai’s appointment as the FCC Chairman is significant. In 2015, Commissioner Pai vigorously dissented from two of the more controversial aspects of the FCC Order, harshly criticizing the FCC’s interpretation of the TCPA. Pai believed the FCC Order dramatically expanded the TCPA’s reach, which he wrote was “sure to spark endless litigation, to the detriment of consumers and legitimate businesses that want to communicate with them.” Speaking of the abuses he saw in TCPA litigation, Pai observed that “in practice the TCPA has strayed far from its original purpose. And the FCC has the power to fix that.”
Since taking over as chairman, Pai has not yet publicly addressed the TCPA or any plans to curtail its reach, focusing his initial efforts in other areas. For example, Pai moved aggressively to roll back Obama-era consumer protection regulations designed to ensure equal access to the internet (so called “net neutrality” rules). But Pai’s sympathetic stance toward business interests, coupled with his 2015 dissent, strongly suggest that he will take steps to reform the FCC’s approach to the TCPA. Nevertheless, while Chairman Pai will bring a new perspective to the TCPA, he is unlikely to seek its wholesale destruction. Rather, Pai’s previous comments suggest he will seek to reform the regulations so that plaintiffs will be incentivized “to go after the illegal telemarketers, the over-the-phone scam artists and the foreign fraudsters[,]” rather than “legitimate, domestic businesses.”
Indeed, reforming the TCPA is not a zero sum game, nor is it necessarily a partisan issue. Both Democrats and Republicans have constituents who resent invasive telemarketing. In recent years, there has been legislative activity in Congress both to strengthen the TCPA’s consumer protections and to reign in its excesses. Currently before Congress is the Help Americans Never Get Unwanted Phone Calls (HANGUP) Act. While HANGUP was authored by Massachusetts Democratic Senator Ed Markey, Republican Senator Michael S. Lee co-sponsored the bill. The bill strikes a provision of the Budget Act of 2015 that exempts from TCPA liability callers collecting debt owed or guaranteed by the federal government. The HANGUP bill illustrates that Democrats and Republicans may be able to work together to reform the TCPA so that it works for both consumers and legitimate businesses.
Although not directly addressed by the TCPA, a bill quietly introduced in February—the Fairness in Class Action Litigation Act of 2017—may have the greatest impact on TCPA litigation. Should this bill become law, it will enact wide-ranging changes to the procedural rules governing class and multi-district litigation. While the rule changes may seem technical and abstract to most lay observers, the practical results could be significant. In short, the various proposed revisions would make it much harder for plaintiffs’ lawyers to certify a class in federal court. Defense attorneys would be given a slew of new tools to defeat class certification, which would incentivize defendants to fight rather than settle and may discourage the filing of borderline suits. President Trump could be expected to sign the bill, which has already passed the House and is currently under consideration in the Senate.
Finally, to the extent that any matters bearing on the TCPA, or the FCC’s authority to enforce it, end up before the Supreme Court, Justice Scalia’s successor may prove critical. The current unconfirmed appointee, Tenth Circuit Judge Neil Gorsuch, is an originalist in the tradition of his predecessor. His conservative judicial philosophy has caused him to rule in favor of business interests more often than individuals. In fact, commentators have remarked that Judge Gorsuch “has not hesitated to take stands that critics say have a partisan edge,” including by criticizing judicial activism and calling for “limiting the power of federal regulators.”
Limiting the power of regulators is exactly what Judge Gorsuch proposed in a concurring opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). In the opinion, Judge Gorsuch challenged the doctrine that compels courts to defer to the rulings of federal agencies in certain circumstances—so called “Chevron deference.” Judge Gorsuch criticized the doctrine for allowing “executive bureaucracies to swallow huge amounts of core judicial and legislative power” and for “concentrat[ing] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In sum, his opinion strongly suggested that the time had come to discard deference to regulators. With ACA International currently pending before the D.C. Circuit Court of Appeals, Judge Gorsuch’s skeptical stance regarding federal regulators, such as the FCC, might prove decisive.
The Trump presidency is still in its infancy and the fate of the TCPA has yet to be discussed. But the tea leaves indicate that the TCPA is likely to get caught up as part of the new administration’s broad-based effort to deregulate. President Trump’s appointees to the FCC and the Supreme Court appear to have ideologies and philosophies that align with these goals. The precise contours of the changes that are coming remain to be seen. But interested businesses and individuals should stay tuned as TCPA reform appears inevitable.
 Adonis Hoffman, "Does TCPA stand for ‘total cash for plaintiffs’ attorneys’?", THE HILL (Feb. 17, 2016).
 Trump signs legislation rolling back Obama-era regulations, U.S. News & World Report, Mar. 27, 2017.
 See our previous article about the Trump campaign TCPA lawsuit here
 See 2016 Year in Review: FDCPA Down, FCRA & TCPA Up, WEBRECON LLC (Jan. 24, 2017), available here
 See our two prior alerts discussing the FCC Declaratory Ruling, Part 1 here
and Part 2 here
 ACA International v. FCC
, 15-1211, (D.C. Cir. filed July 10, 2015).
 For more complete commentary on ACA International v. FCC,
15-1211 please see our coverage here
 The president has the power to appoint commissioners, with confirmation by the United States Senate, to five-year terms. While only three commissioners may be members of the same political party, three is sufficient to constitute a majority.
 In re Rules & Regulations Implementing the TCP Act of 1991 et al.,
30 FCC Rcd 7961 (F.C.C. July 10, 2015).
 For more detail on the specific rule changes in the Act, please see our prior alert here
 Adam Liptak, "In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style," N.Y. TIMES, Jan. 31, 2017.