Dan Blynn, Steve Freeland, and Renato Perez published "March Madness: D.C. Circuit Strikes Down Parts of FCC's 2015 Omnibus TCPA Order" in Response Magazine on March 20, 2018. Here's an excerpt of the article:
After a year-and-a-half wait following oral arguments in October 2016, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit last week weighed in on the Federal Communications Commission's (FCC) 2015 Omnibus Telephone Consumer Protection Act (TCPA) Order. The court was asked to opine on four aspects of the order, including its expanded definition of "automatic telephone dialing system" (more commonly referred to as an "autodialer" or ATDS), restrictions on calling reassigned numbers, and whether and when previously provided consent may be revoked.
In the 51-page ruling, the court first vacated the FCC's efforts to "clarify" the definition of autodialer and explicitly rejected its expanded definition of "capacity," holding that "the Commission's interpretation of the term 'capacity' in the statutory definition of an ATDS is 'utterly unreasonable in the breadth of its regulatory inclusion.'" However, the court did not agree with the petitioners that the label "present ability" or use of a calling platform should be the determining factor in determining what qualifies as an ATDS.
Even though the issue was not before the court, it also suggested that the statutory phrase, "make any call" with respect to the ATDS definition, could mean, as then-Commissioner Michael O'Rielly's dissent to the 2015 order stated, "'the equipment must, in fact, be used as an autodialer to make the calls' before a TCPA violation can be found." Finally, the court noted that the order gave contradictory rulings regarding whether an ATDS must itself have the ability to generate random or sequential numbers to be dialed, or whether it is enough that a platform can call from a database of telephone numbers generated elsewhere, such as by loading a list of numbers to be called.