United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2016 Decided March 16, 2018

No. 15-1211

ACA INTERNATIONAL, ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 

STATES OF AMERICA,

RESPONDENTS

CAVALRY PORTFOLIO SERVICES, LLC, ET AL.,

INTERVENORS

Consolidated with 15-1218, 15-1244, 15-1290, 15-1304, 

15-1306, 15-1311, 15-1313, 15-1314, 15-1440, 15-1441

On Petitions for Review of an Order of

the Federal Communications Commission

Shay Dvoretzky argued the cause for petitioners ACA 

International, et al. With him on the joint briefs were Helgi 

C. Walker, Monica S. Desai, Amy L. Brown, Jonathan Jacob 

Nadler, Christopher J. Wright, Jennifer P. Bagg, Elizabeth 

Austin Bonner, Robert A. Long, Yaron Dori, Brian Melendez, 

Tonia Ouellette Klausner, Keith E. Eggleton, Kate Comerford 
2

Todd, Steven P. Lehotsky, and Warren Postman. Lindsay S. 

See entered an appearance.

Charles R. Messer, pro se, was on the brief for amicus 

curiae Charles R. Messer in support of ACA International=s 

petition.

Paul Werner argued the cause for petitioner Rite Aid 

Hdqtrs. Corp. With him on the briefs was Brian Weimer.

Thomas C. Mugavero, Steven A. Augustino, Jonathan E. 

Paikin, Jonathan G. Cedarbaum, Blaine C. Kimrey, and 

Bryan K. Clark were on the joint briefs for intervenors MRS 

BPO LLC, et al. in support of petitioners. 

Don L. Bell, II was on the brief for amicus curiae The 

National Association of Chain Drug Stores, Inc. in support of 

petitioner Rite Aid Hdqtrs. Corp.

H. Russell Frisby, Jr., Harvey L. Reiter, Aryeh Fishman, 

Michael Murray, and Jay Morrison were on the brief for 

amici curiae American Gas Association, et al. in support of 

petitioners.

Charles H. Kennedy was on the brief for amici curiae

The American Bankers Association, Credit Union National 

Association and The Independent Community Bankers of 

America in support of petitioners.

Andrew B. Clubok, Susan E. Engel, and Devin S. 

Anderson were on the brief for amicus curiae The Internet 

Association in support of petitioners.

Joseph R. Palmore and Seth W. Lloyd were on the brief 

for amici curiae Retail Litigation Center, Inc., National Retail 
3

Federation, and National Restaurant Association in support of 

petitioners.

Bryan N. Tramont and Russell P. Hanser were on the 

brief for amicus curiae CTIA-The Wireless Association in 

support of petitioners.

Eric J. Troutman was on the brief for amici curiae

American Financial Services Association, Consumer 

Mortgage Coalition, and Mortgage Bankers Association in 

support of petitioners. Jan T. Chilton and Kerry W. Frarnich

entered appearances.

Amy M. Gallegos was on the brief for amicus curiae

Communication Innovators in support of petitioners.

Scott M. Noveck, Counsel, Federal Communications 

Commission, argued the cause for respondents. With him on 

the brief were William J. Baer, Assistant Attorney General, 

U.S. Department of Justice, Kristen C. Limarzi, Steven J. 

Mintz, Attorneys, Jonathan B. Sallet, General Counsel, 

Federal Communications Commission, David M. Gossett, 

Deputy General Counsel, and Jacob M. Lewis, Associate 

General Counsel.

Craig L. Briskin and Julie Nepveu were on the brief for 

amici curiae National Consumer Law Center, et al. in support 

of the Federal Communications Commission 2015 Omnibus 

Declaratory Ruling and Order.

Marc Rotenberg and Alan Butler were on the brief for 

amici curiae Electronic Privacy Information Center (EPIC) 

and Six Consumer Privacy Organizations in support of 

respondents.
4

Before: SRINIVASAN and PILLARD, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Unwanted robocalls are an 

all-too-familiar phenomenon. For years, consumers have 

complained to the Federal Communications Commission 

about automated telemarketing calls and text messages that 

they did not seek and cannot seem to stop.

Congress sought to address consumers’ concerns with

undesired robocalls in the Telephone Consumer Protection 

Act of 1991. The TCPA generally prohibits the use of certain 

kinds of automated dialing equipment to call wireless 

telephone numbers absent advance consent. The Act vests the 

Commission with authority to implement those restrictions. 

In this case, a number of regulated entities seek review of 

a 2015 order in which the Commission sought to clarify

various aspects of the TCPA’s general bar against using

automated dialing devices to make uninvited calls. The 

challenges encompass four issues addressed by the agency’s

order: (i) which sorts of automated dialing equipment are

subject to the TCPA’s restrictions on unconsented calls; (ii) 

when a caller obtains a party’s consent, does a call 

nonetheless violate the Act if, unbeknownst to the caller, the 

consenting party’s wireless number has been reassigned to a 

different person who has not given consent; (iii) how may a 

consenting party revoke her consent; and (iv) did the 

Commission too narrowly fashion an exemption from the 

TCPA’s consent requirement for certain healthcare-related 

calls.
5

We uphold the Commission’s approach to revocation of 

consent, under which a party may revoke her consent through 

any reasonable means clearly expressing a desire to receive 

no further messages from the caller. We also sustain the 

scope of the agency’s exemption for time-sensitive healthcare 

calls.

We set aside, however, the Commission’s effort to clarify 

the types of calling equipment that fall within the TCPA’s 

restrictions. The Commission’s understanding would appear 

to subject ordinary calls from any conventional smartphone to

the Act’s coverage, an unreasonably expansive interpretation

of the statute. We also vacate the agency’s approach to calls 

made to a phone number previously assigned to a person who 

had given consent but since reassigned to another 

(nonconsenting) person. The Commission concluded that 

calls in that situation violate the TCPA, apart from a one-call 

safe harbor, regardless of whether the caller has any 

awareness of the reassignment. We determine that the 

agency’s one-call safe harbor, at least as defended in the 

order, is arbitrary and capricious.

We therefore grant the petitions for review in part and 

deny them in part.

I.

The federal government’s efforts to combat unwanted 

robocalls have spanned nearly three decades, involving two 

federal agencies and a number of congressional enactments. 

In the Telemarketing and Consumer Fraud and Abuse 

Prevention Act of 1994, 15 U.S.C. § 6101 et seq., Congress 

empowered the Federal Trade Commission to regulate the 

telemarketing industry. The FTC’s measures include a 

general bar against calling any telephone number on the “do-
6

not-call registry” without consent or an established business 

relationship. 16 C.F.R. § 310.4(b)(1)(iii)(B); see 15 U.S.C. 

§ 6151(a). This case does not concern the FTC’s initiatives.

This case instead concerns the Federal Communications 

Commission’s efforts to combat unwanted robocalls pursuant 

to its authority under the TCPA. Some of the Commission’s 

restrictions on telemarketing calls mirror measures established

by the FTC. Compare 16 C.F.R. §§ 310.4(b)(1)(iii)(B), 

310.4(c), with 47 C.F.R. § 64.1200(c). But the agencies’ 

initiatives also differ in various respects. Of relevance here,

only the TCPA specifically restricts the use of an “automatic 

telephone dialing system” to make calls. 47 U.S.C. 

§ 227(b)(1)(A). Petitioners challenge the Commission’s 

interpretation and implementation of various TCPA 

provisions pertaining to automated dialing equipment.

A.

Congress enacted the TCPA in 1991 based on findings 

that the “use of the telephone to market goods and services to 

the home and other businesses” had become “pervasive due to 

the increased use of cost-effective telemarketing techniques.” 

47 U.S.C. § 227 note, Pub. L. No. 102-243, § 2(1), 105 Stat. 

2394, 2394. “Many consumers,” Congress determined, “are 

outraged over the proliferation of intrusive, nuisance calls to 

their homes from telemarketers.” Id. § 2(6)-(7). 

The TCPA restricts calls both “to any residential 

telephone line” and to “any telephone number assigned to a 

. . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii), 

(B). This case solely concerns the latter restrictions on 

telephone calls to wireless numbers.
7

Congress, in that regard, made it “unlawful . . . to make 

any call (other than a call made for emergency purposes or 

made with the prior express consent of the called party) using 

any automatic telephone dialing system . . . to any telephone 

number assigned to a . . . cellular telephone service,” “unless 

such call is made solely to collect a debt owed to or 

guaranteed by the United States.” Id. § 227(b)(1)(A)(iii). 

The statute defines an “automatic telephone dialing system” 

(ATDS, or autodialer) as “equipment which has the 

capacity—(A) to store or produce telephone numbers to be 

called, using a random or sequential number generator; and 

(B) to dial such numbers.” Id. § 227(a)(1).

In short, the TCPA generally makes it unlawful to call a 

cell phone using an ATDS. And an ATDS is equipment with

the “capacity” to perform each of two enumerated functions: 

(i) storing or producing telephone numbers “using a random 

or sequential number generator” and (ii) dialing those 

numbers. The general prohibition on autodialer calls to 

wireless numbers is subject to three exceptions. The central 

exception for purposes of this case is for calls made with 

“prior express consent.” There are also exceptions for 

emergency calls and calls made to collect government debts.

The TCPA vests the Commission with responsibility to 

promulgate regulations implementing the Act’s requirements. 

Id. § 227(b)(2). The Act also grants the Commission specific 

authority to fashion exemptions from the general prohibition

on autodialer calls to wireless numbers, where the calls are 

“not charged to the called party.” Id. § 227(b)(2)(C). As 

Congress explained, the FCC “should have the flexibility to 

design different rules for those types of automated or 

prerecorded calls that it finds are not considered a nuisance or 

invasion of privacy.” Id. § 227 note, Pub. L. No. 102-243, 

§ 2(13), 105 Stat. 2394, 2395.
8

Since the TCPA’s enactment, the FCC has issued a series 

of rulemakings and declaratory rulings addressing the Act’s

reach. In 2003, for instance, the agency concluded that the 

statute’s restrictions on “mak[ing] any call” using an ATDS 

encompass the sending of text messages. See In re Rules and 

Regulations Implementing the Telephone Consumer 

Protection Act of 1991 (2003 Order), 18 FCC Rcd. 14,014, 

14,115 ¶ 165 (2003). 

The Act contains a private right of action permitting 

aggrieved parties to recover at least $500 in damages for each 

call made (or text message sent) in violation of the statute, 

and up to treble damages for each “willful[] or knowing[]” 

violation. 47 U.S.C. § 227(b)(3). There is no cap on the 

amount of recoverable damages. The Commission has noted 

a surge in TCPA lawsuits (including class actions) in recent 

years, likely attributable in part to the “skyrocketing growth 

of mobile phones.” In re Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 

1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7970 

¶¶ 6-7 (2015). 

B.

In a Declaratory Ruling and Order issued in 2015, the 

Commission (with two Commissioners dissenting) addressed

21 separate petitions for rulemaking or requests for 

clarification. In this court, petitioners and intervenors seek 

review of four aspects of the Commission’s order.

First, the Commission sought to clarify which devices for 

making calls qualify as an ATDS—i.e., equipment that “has 

the capacity” to “store or produce telephone numbers to be 

called, using a random or sequential number generator,” and 

“to dial such numbers.” 47 U.S.C. § 227(a)(1). With regard 
9

to whether equipment has the “capacity” to perform the 

enumerated functions, the Commission declined to define a 

device’s “capacity” in a manner confined to its “present 

capacity.” Instead, the agency construed a device’s 

“capacity” to encompass its “potential functionalities” with 

modifications such as software changes. 2015 Declaratory 

Ruling, 30 FCC Rcd. at 7974 ¶ 16. 

The Commission also addressed the precise functions that 

a device must have the capacity to perform for it to be 

considered an ATDS. The Commission reaffirmed prior 

orders deciding that “predictive dialers”—equipment that can 

dial automatically from a given list of telephone numbers

using algorithms to predict “when a sales agent will be 

available”—qualify as autodialers. Id. at 7972 ¶ 10 & n.39. 

The Commission further explained that a “basic function[]” of 

an autodialer is to “dial numbers without human 

intervention.” Id. at 7975 ¶ 17. At the same time, the 

Commission also declined to “clarify[] that a dialer is not an 

autodialer unless it has the capacity to dial numbers without 

human intervention.” Id. at 7976 ¶ 20. 

Second, the Commission spoke to whether, and when, a 

caller violates the TCPA by calling a wireless number that has 

been reassigned from a consenting party to another person 

without the caller’s knowledge. The Act specifically permits

autodialer calls “made with the prior express consent of the 

called party.” 47 U.S.C. § 227(b)(1)(A). If the “called party” 

for those purposes refers to the intended recipient of a call or 

message, a caller would face no liability when using an ATDS 

to call a number believed to belong to a consenting party, 

even if the number in fact has been reassigned to another 

person who has not consented.
10

The Commission, though, determined that the term 

“called party” refers not to “the intended recipient of a call” 

but instead to “the current subscriber” (i.e., the current, 

nonconsenting holder of a reassigned number rather than a

consenting party who previously held the number). 2015 

Declaratory Ruling, 30 FCC Rcd. at 7999 ¶ 72. But the 

Commission did not hold a caller strictly liable when unaware 

that the consenting party’s number has been reassigned to 

another person. Instead, the agency allowed one—and only 

one—liability-free, post-reassignment call for callers who 

lack “knowledge of [the] reassignment” and possess “a 

reasonable basis to believe that they have valid consent.” Id.

at 8000 ¶ 72. 

Third, the Commission clarified the ways in which a 

consenting party can revoke her consent to receive autodialer 

calls. The Commission decided that callers may not 

unilaterally designate the acceptable means of revocation. It 

also declined to prescribe its own set of mandatory revocation 

procedures. Rather, it concluded that “a called party may 

revoke consent at any time and through any reasonable 

means”—whether orally or in writing—“that clearly 

expresses a desire not to receive further messages.” Id. at 

7989-90 ¶ 47; id. at 7996 ¶ 63. 

Fourth, and finally, the Commission exempted from the 

autodialer provision’s consent requirement certain calls to 

wireless numbers “for which there is exigency and that have a 

healthcare treatment purpose.” Id. at 8031 ¶ 146. It declined, 

however, to give the exemption the reach desired by certain 

parties that are in the business of healthcare-related marketing 

calls. 

We will take up the challenges to those four aspects of 

the Commission’s 2015 ruling in the same order. 
11

II.

Under the Administrative Procedure Act, we assess

whether the Commission’s challenged actions in its 2015 

order were “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 

We review the lawfulness of the Commission’s interpretations 

of the TCPA using the two-step Chevron framework. That 

inquiry calls for examining whether “Congress has directly 

spoken to the precise question at issue,” and, if not, whether 

“the agency’s answer is based on a permissible construction 

of the statute.” Chevron U.S.A. Inc. v. Nat’l Res. Def. 

Council, Inc., 467 U.S. 837, 842-43 (1984).

To be lawful, the Commission’s challenged actions must 

also satisfy the Administrative Procedure Act’s requirement 

that they not be arbitrary or capricious. Arbitrary-andcapricious review includes assuring that the agency “engaged 

in reasoned decisionmaking.” Judulang v. Holder, 565 U.S. 

42, 53 (2011). Review of agency action for arbitrariness and

capriciousness sometimes entails essentially the same inquiry 

as review of an agency’s exercise of statutory interpretation

under Chevron’s second step. See id. at 52 n.7; Agape 

Church, Inc. v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013). 

Applying those standards to petitioners’ four sets of 

challenges to the Commission’s 2015 Declaratory Ruling, we 

set aside the Commission’s explanation of which devices

qualify as an ATDS, as well as its understanding of when a 

caller violates the Act by calling a wireless number previously

held by a consenting party but reassigned to a person who has 

not given consent. We sustain, however, the Commission’s 

ruling that a party can revoke consent through any reasonable 

means clearly expressing a desire to receive no further calls or 
12

texts, and we also uphold the scope of the Commission’s 

exemption for time-sensitive, healthcare-related calls.

A.

We first consider the Commission’s effort to clarify 

which sorts of calling equipment qualify as an ATDS so as to 

fall subject to the general prohibition against making calls 

using such a device without consent. The statute defines an 

ATDS as “equipment which has the capacity—(A) to store or 

produce telephone numbers to be called, using a random or 

sequential number generator; and (B) to dial such numbers.” 

47 U.S.C § 227(a)(1). That definition naturally raises two 

questions: (i) when does a device have the “capacity” to 

perform the two enumerated functions; and (ii) what precisely 

are those functions? We conclude that the Commission’s 

approach to those two questions cannot be sustained, at least 

given the Commission’s unchallenged assumption that a call 

made with a device having the capacity to function as an 

autodialer can violate the statute even if autodialer features

are not used to make the call.

1.

a. In addressing what it means for equipment to have the 

“capacity” to perform the autodialer functions enumerated in

the statute, the Commission rejected the arguments of various 

parties that a device’s capacity must be measured solely by 

reference to its “present capacity” or its “current 

configuration” without any modification. 2015 Declaratory 

Ruling, 30 FCC Rcd. at 7974 ¶ 16. The Commission instead

determined that the “capacity” of calling equipment “includes 

its potential functionalities” or “future possibility,” not just its 

“present ability.” Id. at 7974 ¶ 16; id. at 7975 ¶ 20. 
13

The Commission reasoned that the “functional capacity 

of software-controlled equipment is designed to be flexible, 

both in terms of features that can be activated or de-activated 

and in terms of features that can be added to the equipment’s 

overall functionality through software changes or updates.” 

Id. at 7974 ¶ 16 n.63. And the Commission found support for 

its “potential functionalities” approach in dictionary

definitions of the term “capacity,” one of which is “the 

potential or suitability for holding, storing, or 

accommodating.” Id. at 7975 ¶ 19 (quoting Capacity, 

Merriam-Webster Dictionary Online, https://www.merriamwebster.com/dictionary/capacity (as visited May 18, 2015)). 

In challenging the Commission’s approach, petitioners

argue that the term “capacity” in the statutory definition of an 

ATDS can refer only to a device’s “present ability,” i.e., its 

current and unmodified state, not its “potential ability” taking 

into account possible upgrades or modifications. It is far from 

clear, though, that labels such as “present” ability versus

“potential” ability should carry dispositive weight in assessing

the meaning of the statutory term “capacity.” After all, even 

under the ostensibly narrower, “present ability” interpretation 

advanced by petitioners, a device that “presently” (and 

generally) operates as a traditional telephone would still be 

considered have the “capacity” to function as an ATDS if it 

could assume the requisite features merely upon touching a 

button on the equipment to switch it into autodialer mode. 

Virtually any understanding of “capacity” thus contemplates 

some future functioning state, along with some modifying act 

to bring that state about.

Consequently, the question whether equipment has the 

“capacity” to perform the functions of an ATDS ultimately

turns less on labels such as “present” and “potential” and 

more on considerations such as how much is required to 
14

enable the device to function as an autodialer: does it require 

the simple flipping of a switch, or does it require essentially a 

top-to-bottom reconstruction of the equipment? And 

depending on the answer, what kinds (and how broad a swath)

of telephone equipment might then be deemed to qualify as an 

ATDS subject to the general bar against making any calls

without prior express consent?

b. Here, the Commission adopted an expansive 

interpretation of “capacity” having the apparent effect of 

embracing any and all smartphones: the device routinely used 

by the vast majority of citizens to make calls and send 

messages (and for many people, the sole phone equipment

they own). It is undisputed that essentially any smartphone, 

with the addition of software, can gain the statutorily 

enumerated features of an autodialer and thus function as an 

ATDS. The Commission in its ruling did not question the 

observation of a dissenting Commissioner that “[i]t’s trivial to 

download an app, update software, or write a few lines of 

code that would modify a phone to dial random or sequential 

numbers.” 2015 Declaratory Ruling, 30 FCC Rcd. at 8075 

(Comm’r Pai, dissenting). The Commission itself noted that

“[d]ialing options” are now “available via smartphone apps” 

that enable “[c]alling and texting consumers en masse.” Id. at 

7970 ¶ 7. 

The Commission’s ruling concluded that app downloads 

and other software additions of that variety—and the 

enhanced functionality they bring about—are appropriately 

considered to be within a device’s “capacity.” The ruling 

states that equipment’s “functional capacity” includes 

“features that can be added . . . through software changes or 

updates.” Id. at 7974 ¶ 16 n.63. As a result, “a piece of 

equipment can possess the requisite ‘capacity’ to satisfy the 

statutory definition of an ‘autodialer’ even if, for example, it 
15

requires the addition of software to actually perform the 

functions described in the definition.” Id. at 7975 ¶ 18. The 

Commission reinforced the point in an example set forth in its 

brief in this case: “If I ask whether the Firefox browser has 

the ‘capacity’ to play Flash videos, it would be natural for you 

to answer ‘Yes, if you download the Flash plug-in’—and it 

would be incorrect for you to answer ‘No.’” FCC Br. 29.

If a device’s “capacity” includes functions that could be

added through app downloads and software additions, and if 

smartphone apps can introduce ATDS functionality into the

device, it follows that all smartphones, under the 

Commission’s approach, meet the statutory definition of an 

autodialer. The Commission’s ruling does not deny that 

conclusion. 

To the contrary, a number of parties specifically argued 

to the agency “that a broad interpretation of ‘capacity’ could 

potentially sweep in smartphones because they may have the 

capacity to store telephone numbers to be called and to dial 

such numbers through the use of an app or other software.” 

2015 Declaratory Ruling, 30 FCC Rcd. at 7976 ¶ 21. Rather 

than resist that contention, the Commission assumed its 

correctness, responding that, even if smartphones qualify as 

autodialers, it was unclear to the Commission that the “typical 

use of smartphones” would be “likely” to give rise to 

“unwanted calls” of a kind producing “legal action.” Id. at

7977 ¶ 21. A dissenting Commissioner read that portion of 

the Commission’s order to “acknowledge[] that smartphones 

are swept in under its reading,” such that “each and every 

smartphone . . . is an automatic telephone dialing system.” Id. 

at 8075 & n.576 (Comm’r Pai, dissenting). The Commission 

did not disagree or suggest otherwise.
16

c. If every smartphone qualifies as an ATDS, the 

statute’s restrictions on autodialer calls assume an eyepopping sweep. Recall that the statute generally bars the use 

of an ATDS to make any call (or send any text message) 

without prior express consent, and tags each violation with a 

minimum $500 penalty in damages for each individual 

recipient of each prohibited call or message. The reach of the 

statute becomes especially pronounced upon recognizing that, 

under the Commission’s approach, an uninvited call or 

message from a smartphone violates the statute even if 

autodialer features were not used to make the call or send the 

message. Id. at 7976 ¶ 19 n.70. We explore that interpretive 

issue in greater depth below (infra § II.A.3); but for now, it 

suffices to appreciate the Commission’s understanding that, as 

long as equipment has the “capacity” to function as an 

autodialer—as is true of every smartphone under the agency’s 

view—any uninvited call or message from the device is a 

statutory violation. 

Imagine, for instance, that a person wishes to send an 

invitation for a social gathering to a person she recently met 

for the first time. If she lacks prior express consent to send 

the invitation, and if she obtains the acquaintance’s cell phone 

number from a mutual friend, she ostensibly commits a 

violation of federal law by calling or sending a text message 

from her smartphone to extend the invitation. See 2015 

Declaratory Ruling, 30 FCC Rcd. at 8076 (Comm’r Pai, 

dissenting). And if she sends a group message inviting ten 

people to the gathering, again without securing prior express 

consent from any of the recipients, she not only would have 

infringed the TCPA ten distinct times but would also face a 

minimum damages recovery against her of $5,000.

Those sorts of anomalous outcomes are bottomed in an 

unreasonable, and impermissible, interpretation of the 
17

statute’s reach. The TCPA cannot reasonably be read to 

render every smartphone an ATDS subject to the Act’s

restrictions, such that every smartphone user violates federal 

law whenever she makes a call or sends a text message 

without advance consent. 

A “significant majority of American adults” owned a 

smartphone even by 2013. Riley v. California, 134 S. Ct. 

2473, 2484 (2014). And as of the end of 2016, nearly 80% of 

American adults had become smartphone owners. See 10 

Facts About Smartphones as the iPhone Turns 10, Pew 

Research Ctr., June 28, 2017, 

http://www.pewresearch.org/fact-tank/2017/06/28/10-factsabout-smartphones (last visited Dec. 18, 2017). That figure 

will only continue to grow, and increasingly, individuals own 

no phone equipment other than a smartphone. See id.; 

Wireless Substitution: Early Release of Estimates From the 

National Health Interview Survey, January–June 2017, Nat’l 

Ctr. for Health Statistics 1 (Dec. 2017), 

https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless2017

05.pdf. 

It is untenable to construe the term “capacity” in the 

statutory definition of an ATDS in a manner that brings

within the definition’s fold the most ubiquitous type of phone 

equipment known, used countless times each day for routine 

communications by the vast majority of people in the country. 

It cannot be the case that every uninvited communication 

from a smartphone infringes federal law, and that nearly every 

American is a TCPA-violator-in-waiting, if not a violator-infact. 

In that regard, it is notable that Congress, in its findings 

setting forth the basis for the statute, found that some “30,000 

businesses actively telemarket goods and services to business 
18

and residential customers” and “[m]ore than 300,000 

solicitors call more than 18,000,000 Americans every day.” 

47 U.S.C. § 227 note, Pub. L. No. 102-243, § 2(2)-(3), 105 

Stat. 2394, 2394. Those sorts of predicate congressional 

findings can shed substantial light on the intended reach of a 

statute. See Sutton v. United Airlines, Inc., 527 U.S. 471, 

484-87 (1999). 

Of course, there is no expectation that a statute’s reach 

necessarily will precisely match Congress’s findings about a 

problem it aims to address, and Congress might well fashion a 

statute’s operative provisions with built-in flexibility to 

accommodate expansion of the concerns animating the 

legislation over time. But a several-fold gulf between 

congressional findings and a statute’s suggested reach can call 

into doubt the permissibility of the interpretation in 

consideration. 

That is what happened in Sutton. There, the Supreme 

Court rejected an interpretation of the term “disability” in the 

Americans with Disabilities Act that would have treated some 

160 million persons as disabled in the face of congressional 

findings contemplating the population of disabled persons as 

numbering only 43 million. See id.; id. at 494-95 (Ginsburg, 

J., concurring). (After Sutton, Congress amended the 

statutory findings and the statute to allow for an expansive 

application. See ADA Amendments Act of 2008, Pub. L. No. 

110-325, § 2, 122 Stat. 3553, 3554.)

Here, as in Sutton, the Commission’s expansive

understanding of “capacity” in the TCPA is incompatible with 

a statute grounded in concerns about hundreds of thousands of 

“solicitors” making “telemarketing” calls on behalf of tens of 

thousands of “businesses.” The Commission’s interpretation 

would extend a law originally aimed to deal with hundreds of 
19

thousands of telemarketers into one constraining hundreds of 

millions of everyday callers. 

The Commission’s capacious understanding of a device’s 

“capacity” lies considerably beyond the agency’s zone of 

delegated authority for purposes of the Chevron framework. 

As we have explained, “even if the [statute] does not 

foreclose the Commission’s interpretation, the interpretation 

[can] fall[] outside the bounds of reasonableness” at 

Chevron’s second step. Goldstein v. SEC, 451 F.3d 873, 880-

81 (D.C. Cir. 2006). That is because an “agency[’s]

construction of a statute cannot survive judicial review if a 

contested regulation reflects an action that exceeds the 

agency’s authority.” Id. (quoting Aid Ass’n for Lutherans v. 

United States Postal Serv., 321 F.3d 1166, 1174 (D.C. Cir. 

2003)). 

In Aid Ass’n, for example, we examined Postal Service 

regulations that excluded nonprofit organizations’ use of 

certain reduced postage rates. We found the regulations to be 

incompatible with congressional intent. The regulations, we 

said, “constitute an impermissible construction of the statute 

under Chevron Step Two because the interpretation is utterly 

unreasonable in the breadth of its regulatory exclusion.” 321 

F.3d at 1178.

In this case, similarly, the Commission’s interpretation of 

the term “capacity” in the statutory definition of an ATDS is 

“utterly unreasonable in the breadth of its regulatory 

[in]clusion.” Id. Nothing in the TCPA countenances

concluding that Congress could have contemplated the 

applicability of the statute’s restrictions to the most 

commonplace phone device used every day by the 

overwhelming majority of Americans.
20

The Commission suggested in its ruling that, unless 

“capacity” reached so broadly, “little or no modern dialing

equipment would fit the statutory definition.” 2015 

Declaratory Ruling, 30 FCC Rcd. at 7976 ¶ 20. But Congress 

need not be presumed to have intended the term “automatic 

telephone dialing system” to maintain its applicability to 

modern phone equipment in perpetuity, regardless of 

technological advances that may render the term increasingly 

inapplicable over time. After all, the statute also generally 

prohibits nonconsensual calls to numbers associated with a 

“paging service” or “specialized mobile radio service,” 47 

U.S.C. § 227(b)(1)(A)(iii), yet those terms have largely 

ceased to have practical significance.

In any event, the Commission retains a measure of

authority under the TCPA to fashion exemptions to the 

restrictions on use of autodialers to call wireless numbers. Id. 

§ 227(b)(2)(C). The agency presumably could, if needed, 

fashion exemptions preventing a result under which every 

uninvited call or message from a standard smartphone would 

violate the statute.

d. In its briefing before our court, the Commission now 

submits that its order in fact did not reach a definitive 

resolution on whether smartphones qualify as autodialers. 

As we have explained, however, a straightforward reading of 

the Commission’s ruling invites the conclusion that all 

smartphones are autodialers: the ruling explained that a 

number of parties specifically raised the issue; and it 

responded, not by disputing the parties’ concerns that 

smartphones would be covered by the statutory definition

under the agency’s approach, but instead by accepting that 

conclusion and then questioning whether uninvited calls in 

fact would be made and lawsuits in fact would be brought. 
21

It is highly difficult to read the Commission’s ruling to 

leave uncertain whether the statutory definition applies to 

smartphones. And any uncertainty on that score would have 

left affected parties without concrete guidance even though 

several of them specifically raised the issue with the agency, 

and even though the issue carries significant implications—

including the possibility of committing federal law violations 

and incurring substantial liability in damages—for 

smartphone owners. 

At any rate, even assuming the Commission’s ruling 

could be conceived to leave room for concluding that 

smartphones do not qualify as autodialers, that result itself 

would be unreasonable and impermissible. The 

Commission’s order, in that event, would not constitute 

reasoned decisionmaking and thus would not satisfy APA 

arbitrary-and-capricious review. See United States Postal 

Serv. v. Postal Regulatory Comm’n, 785 F.3d 740, 754 (D.C. 

Cir. 2015). 

Administrative action is “arbitrary and capricious [if] it 

fails to articulate a comprehensible standard” for assessing the 

applicability of a statutory category. Id. at 753. If a 

“purported standard is indiscriminate and offers no 

meaningful guidance” to affected parties, it will fail “the 

requirement of reasoned decisionmaking.” Id. at 754. That 

will be the case if an agency cannot satisfactorily explain why 

a challenged standard embraces one potential application but 

leaves out another, seemingly similar one. See id. at 754-55.

That would be precisely the situation here if, as the 

Commission now contends in its briefing before us, its order 

in fact left open the possibility that smartphones fail to meet 

the statutory definition of an ATDS. In the same briefing, the 

Commission, as noted, simultaneously maintained that the 
22

Firefox browser has the “capacity” to play Flash videos 

because the Flash plug-in can be downloaded. Precisely the 

same logic seemingly should compel concluding that 

smartphones have the “capacity” to function as autodialers 

because apps carrying the requisite features can be 

downloaded. If the Commission believes smartphones 

nonetheless do not meet the definition of an autodialer, there 

is no explanation of “this differential treatment of seemingly 

like cases.” Id. at 755 (internal quotation marks omitted). 

The Commission did say in its order that “there must be 

more than a theoretical potential that the equipment could be 

modified to satisfy the ‘autodialer’ definition.” 2015 

Declaratory Ruling, 30 FCC Rcd. at 7975 ¶ 18. But that 

ostensible limitation affords no ground for distinguishing 

between a smartphone and the Firefox browser. In light of the 

ease of downloading an app to a smartphone, there is no 

evident basis for concluding that the Firefox browser has 

more than a mere “theoretical potential” to play Flash videos 

by downloading a plug-in, but a smartphone nonetheless has

only a “theoretical potential” to function as an autodialer by 

downloading an app. 

The point is fortified by the sole example of a mere 

“theoretical potential” set forth by the Commission in its 

order. That example involves a traditional rotary-dial phone

(which by now is approaching obsolescence): the 

Commission observed that “it might be theoretically possible 

to modify a rotary-dial telephone to such an extreme that it 

would satisfy the definition of ‘autodialer,’ but such a 

possibility is too attenuated . . . to find that a rotary-dial phone 

has the requisite ‘capacity’ and therefore is an autodialer.” Id. 

A rotary phone has no relevant similarity to a smartphone. To 

the contrary, whereas a smartphone and the Firefox browser

substantially resemble one another in their amenability to an 
23

upgrade via the addition of software, they substantially differ

in that regard from a rotary-dial phone, which has no such 

capability.

In the end, then, the Commission’s order cannot 

reasonably be understood to support the conclusion that 

smartphones fall outside the TCPA’s autodialer definition: 

any such reading would compel concluding that the agency’s 

ruling fails arbitrary-and-capricious review. The more 

straightforward understanding of the Commission’s ruling is 

that all smartphones qualify as autodialers because they have 

the inherent “capacity” to gain ATDS functionality by 

downloading an app. That interpretation of the statute, for all 

the reasons explained, is an unreasonably, and impermissibly,

expansive one.

2.

Recall that the statutory definition of an ATDS raises two 

sets of questions: (i) when does a device have the “capacity” 

to perform the functions of an autodialer enumerated by the 

statute?; and (ii) what precisely is the content of those 

functions? The impermissibility of the Commission’s 

interpretation of the term “capacity” in the autodialer 

definition is compounded by inadequacies in the agency’s 

explanation of the requisite features. Having addressed the 

first issue, we now turn to the second one.

a. As a threshold matter, the Commission maintains that 

the court lacks jurisdiction to entertain petitioners’ challenge 

concerning the functions a device must be able to perform. 

The agency reasons that the issue was resolved in prior 

agency orders—specifically, declaratory rulings in 2003 and 

2008 concluding that the statutory definition of an ATDS 

includes “predictive dialers,” dialing equipment that can make 
24

use of algorithms to “assist[] telemarketers in predicting when 

a sales agent will be available to take calls.” 2015 

Declaratory Ruling, 30 FCC Rcd. at 7972 ¶ 10 n.39; see also

In re Rules and Regulations Implementing the Telephone

Consumer Protection Act of 1991 (2008 Declaratory Ruling), 

23 FCC Rcd. 559 (2008); 2003 Order, 18 FCC Rcd. 14,014.

According to the Commission, because there was no timely 

appeal from those previous orders, it is too late now to raise a 

challenge by seeking review of a more recent declaratory 

ruling that essentially ratifies the previous ones. We disagree.

While the Commission’s latest ruling purports to reaffirm 

the prior orders, that does not shield the agency’s pertinent 

pronouncements from review. The agency’s prior rulings left 

significant uncertainty about the precise functions an 

autodialer must have the capacity to perform. Petitioners 

covered their bases by filing petitions for both a declaratory 

ruling and a rulemaking concerning that issue and related 

ones. See, e.g., Prof’l Ass’n for Customer Engagement, Inc.

Pet. 3-4; ACA Int’l Pet. 6; GroupMe, Inc. Pet. 3; Glide Talk, 

Ltd. Pet. 13. In response, the Commission issued a 

declaratory ruling that purported to “provid[e] clarification on 

the definition of ‘autodialer,’” and denied the petitions for 

rulemaking on the issue. 2015 Declaratory Ruling, 30 FCC 

Rcd. at 8039 ¶ 165 & n.552. The ruling is thus reviewable on 

both grounds. See 5 U.S.C. § 554(e); Biggerstaff v. FCC, 511 

F.3d 178, 184-85 (D.C. Cir. 2007). 

b. The statutory definition says that a device constitutes

an ATDS if it has the capacity to perform both of two 

enumerated functions: “to store or produce telephone 

numbers to be called, using a random or sequential number 

generator”; and “to dial such numbers.” 47 U.S.C. 

§ 227(a)(1)(A)-(B). The role of the phrase, “using a random 

or sequential number generator,” has generated substantial
25

questions over the years. The Commission has sought to 

address those questions in previous orders and did so again in 

the 2015 Declaratory Ruling we consider here. 

The Commission’s most recent effort falls short of 

reasoned decisionmaking in “offer[ing] no meaningful 

guidance” to affected parties in material respects on whether 

their equipment is subject to the statute’s autodialer 

restrictions. Postal Regulatory Comm’n, 785 F.3d at 754. A 

basic question raised by the statutory definition is whether a

device must itself have the ability to generate random or 

sequential telephone numbers to be dialed. Or is it enough if 

the device can call from a database of telephone numbers 

generated elsewhere? The Commission’s ruling appears to be

of two minds on the issue.

In certain respects, the order conveys that equipment 

needs to have the ability to generate random or sequential 

numbers that it can then dial. The order twice states that, to 

“meet[] the TCPA’s definition of ‘autodialer,’” the equipment 

in question must have the capacity to “dial random or 

sequential numbers.” 2015 Declaratory Ruling, 30 FCC Rcd.

at 7972 ¶ 10; see also id. at 7974 ¶ 15. And it is clear from 

context that the order treats the ability to “dial random or 

sequential numbers” as the ability to generate and then dial 

“random or sequential numbers.” 

To see why, it is helpful to understand that the ruling

distinguishes between use of equipment to “dial random or 

sequential numbers” and use of equipment to “call[] a set list 

of consumers.” Id. at 7972 ¶ 10. Anytime phone numbers are 

dialed from a set list, the database of numbers must be called 

in some order—either in a random or some other sequence. 

As a result, the ruling’s reference to “dialing random or 

sequential numbers” cannot simply mean dialing from a set 
26

list of numbers in random or other sequential order: if that 

were so, there would be no difference between “dialing 

random or sequential numbers” and “dialing a set list of 

numbers,” even though the ruling draws a divide between the 

two. See id. at 7973 ¶¶ 13, 14. It follows that the ruling’s 

reference to “dialing random or sequential numbers” means 

generating those numbers and then dialing them.

The Commission’s prior declaratory rulings reinforce that 

understanding. In its 2003 ruling addressing predictive 

dialers, the Commission observed that, “[i]n the past, 

telemarketers may have used dialing equipment to create and 

dial 10-digit telephone numbers arbitrarily.” 2003 Order, 18 

FCC Rcd. at 14,092 ¶ 132 (emphasis added). But the industry 

had “progressed to the point where” it had become “far more 

cost effective” instead to “us[e] lists of numbers.” Id. Again, 

the Commission suggested it saw a difference between calling 

from a list of numbers, on one hand, and “creating and 

dialing” a random or arbitrary list of numbers, on the other 

hand. Or as the Commission has elsewhere said, numbers that 

are “randomly or sequentially generated” differ from numbers 

that “come from a calling list.” In re Implementation of the 

Middle Class Tax Relief and Job Creation Act of 2012, 27 

FCC Rcd. 13,615, 13,629 ¶ 29 (2012) (quoted in 2015 

Declaratory Ruling, 30 FCC Rcd. at 8077 (Comm’r Pai, 

dissenting)).

While the 2015 ruling indicates in certain places that a 

device must be able to generate and dial random or sequential 

numbers to meet the TCPA’s definition of an autodialer, it 

also suggests a competing view: that equipment can meet the 

statutory definition even if it lacks that capacity. The 

Commission reaffirmed its 2003 ruling insofar as that order 

had found predictive dialers to qualify as ATDSs. 2015 

Declaratory Ruling, 30 FCC Rcd. at 7972-73 ¶¶ 12-14. And 
27

in the 2003 order, the Commission had made clear that, while 

some predictive dialers cannot be programmed to generate 

random or sequential phone numbers, they still satisfy the 

statutory definition of an ATDS. 2003 Order, 18 FCC Rcd. at

14,091 ¶ 131 n.432; id. at 14,093 ¶ 133. By reaffirming that 

conclusion in its 2015 ruling, the Commission supported the 

notion that a device can be considered an autodialer even if it 

has no capacity itself to generate random or sequential 

numbers (and instead can only dial from an externally 

supplied set of numbers). The 2015 ruling correspondingly

expresses that “predictive dialers” can differ from other 

“dialers that utilize random or sequential numbers instead of a 

list of numbers.” 2015 Declaratory Ruling, 30 FCC Rcd. at 

7973 ¶ 14. 

So which is it: does a device qualify as an ATDS only if 

it can generate random or sequential numbers to be dialed, or 

can it so qualify even if it lacks that capacity? The 2015 

ruling, while speaking to the question in several ways, gives 

no clear answer (and in fact seems to give both answers). It 

might be permissible for the Commission to adopt either 

interpretation. But the Commission cannot, consistent with 

reasoned decisionmaking, espouse both competing

interpretations in the same order.

The choice between the interpretations is not without 

practical significance. Petitioners and various amici describe 

calling equipment that they wish to use to call set lists of 

cellular numbers without any generation of random or 

sequential numbers. See ACA Int’l Reply Br. 21; Am. 

Bankers Ass’n Amicus Br. 29-30. And at least some 

predictive dialers, as explained, have no capacity to generate 

random or sequential numbers. 
28

The uncertainty in the 2015 ruling, moreover, does not 

stop with the question of whether a device must be able to 

generate random or sequential numbers to meet the statutory 

definition. The ruling is also unclear about whether certain

other referenced capabilities are necessary for a dialer to 

qualify as an ATDS.

For instance, the ruling states that the “basic function” of 

an autodialer is the ability to “dial numbers without human 

intervention.” 2015 Declaratory Ruling, 30 FCC Rcd. at 7973

¶ 14; id. at 7975 ¶ 17. Prior orders had said the same. 2003 

Order, 18 FCC Rcd. at 14,092 ¶ 132; 2008 Declaratory 

Ruling, 23 FCC Rcd. at 566 ¶ 13. That makes sense given 

that “auto” in autodialer—or, equivalently, “automatic” in 

“automatic telephone dialing system,” 47 U.S.C. 

§ 227(a)(1)—would seem to envision non-manual dialing of 

telephone numbers. 

But the Commission nevertheless declined a request to 

“clarify[] that a dialer is not an autodialer unless it has the 

capacity to dial numbers without human intervention.” 2015 

Declaratory Ruling, 30 FCC Rcd. at 7976 ¶ 20. According to 

the Commission, then, the “basic function” of an autodialer is 

to dial numbers without human intervention, but a device 

might still qualify as an autodialer even if it cannot dial 

numbers without human intervention. Those side-by-side

propositions are difficult to square.

The Commission further said that another “basic 

function[]” of an ATDS is to “dial thousands of numbers in a 

short period of time.” Id. at 7975 ¶ 17. But the ruling imparts 

no additional guidance concerning whether that is a necessary 

condition, a sufficient condition, a relevant condition even if 

neither necessary nor sufficient, or something else. Nor does 

it indicate what would qualify as a “short period of time.” 
29

Again, affected parties are left in a significant fog of 

uncertainty about how to determine if a device is an ATDS so 

as to bring into play the restrictions on unconsented calls.

In short, the Commission’s ruling, in describing the 

functions a device must perform to qualify as an autodialer, 

fails to satisfy the requirement of reasoned decisionmaking. 

The order’s lack of clarity about which functions qualify a 

device as an autodialer compounds the unreasonableness of 

the Commission’s expansive understanding of when a device 

has the “capacity” to perform the necessary functions. We 

must therefore set aside the Commission’s treatment of those 

matters.

3.

We briefly note an additional statutory provision

affecting the scope of the TCPA’s restrictions on autodialer 

calls to cell numbers—a provision we ultimately have no 

occasion to examine because of the way the case has been 

presented to us. Two TCPA provisions work together to

establish the reach of the general prohibition against making 

autodialer calls without prior consent. The first provision, as 

we have seen, defines the equipment—viz., “automatic 

telephone dialing system”—subject to the statutory 

prohibition. 47 U.S.C. § 227(a)(1). The second provision 

then incorporates that definition in setting out the scope of the 

prohibition: “It shall be unlawful for any person . . . to make 

any call (other than a call made for emergency purposes or 

made with the prior express consent of the called party) using 

any automatic telephone dialing system . . . to any telephone 

number assigned to a . . . cellular telephone service[.]” Id. 

§ 227(b)(1)(A)(iii) (emphases added).
30

Petitioners have confined their challenge to the 

Commission’s understanding of the first of those provisions, 

the statutory definition of an autodialer, and our analysis has 

been focused on that issue. Petitioners have raised no 

challenge to the Commission’s understanding of the second 

provision—i.e., to the agency’s interpretation of what it 

means to “make any call using any” ATDS. In particular, in 

the case of a device having the “capacity” both to perform the 

autodialer functions set out in the statutory definition and to 

perform as a traditional phone, does the bar against “making 

any call using” an ATDS apply only to calls made using the 

equipment’s ATDS functionality? Or does the bar apply to all 

calls made with a device having that “capacity,” even ones

made without any use of the equipment’s autodialer 

capabilities? Or does the bar apply to calls made using 

certain autodialer functions, even if not all of them?

The Commission’s ruling endorsed a broad 

understanding under which the statute prohibits any calls 

made from a device with the capacity to function as an 

autodialer, regardless of whether autodialer features are used 

to make a call. 2015 Declaratory Ruling, 30 FCC Rcd. at 

7975 ¶ 19 n.70. A dissenting commissioner, by contrast, read 

the pertinent statutory phrase, “make any call,” to mean “that 

the equipment must, in fact, be used as an autodialer to make 

the calls” before a TCPA violation can be found. Id. at 8088

(Comm’r O’Rielly, dissenting in part and approving in part).

The dissenting commissioner’s interpretation would 

substantially diminish the practical significance of the 

Commission’s expansive understanding of “capacity” in the 

autodialer definition. Even if the definition encompasses any 

device capable of gaining autodialer functionality through the 

downloading of software, the mere possibility of adding those 

features would not matter unless they were downloaded and 
31

used to make calls. Under the dissent’s understanding of the 

phrase, “make any call,” then, everyday calls made with a 

smartphone would not infringe the statute: the fact that a 

smartphone could be configured to function as an autodialer 

would not matter unless the relevant software in fact were 

loaded onto the phone and were used to initiate calls or send 

messages.

Petitioners, however, raise no challenge to the 

Commission’s understanding of the statutory words, “make 

any call using” an ATDS, and the parties therefore have not 

presented arguments on the issue in their briefing before us. 

Our consistent practice in such a situation is to decline to 

address (much less resolve) the issue. See, e.g., U.S. Telecom 

Ass’n v. FCC, 825 F.3d 674, 697 (D.C. Cir. 2016). We “sit to 

resolve only legal questions presented and argued by the 

parties.” Id. (internal quotation marks omitted). We 

nonetheless note the issue in light of its potential interplay 

with the distinct challenges petitioners do raise. The agency 

could choose to revisit the issue in a future rulemaking or 

declaratory order, and a party might then raise the issue on 

judicial review.

B.

We now turn to the Commission’s treatment of 

circumstances in which a consenting party’s cell number has 

been reassigned to another person. While there is no 

consensus about the exact numbers of reassignments, there is 

no dispute that millions of wireless numbers are reassigned 

each year. In the event of a reassignment, the caller might

initiate a phone call (or send a text message) based on a 

mistaken belief that the owner of the receiving number has 

given consent, when in fact the number has been reassigned to 

someone else from whom consent has not been obtained. 
32

Does a call or message in that situation violate the

statutory bar against making autodialer calls without prior 

consent? The Commission’s answer is yes, apart from a onecall, post-reassignment safe harbor. We set aside the 

Commission’s interpretation on the ground that the one-call 

safe harbor is arbitrary and capricious.

1.

The pertinent statutory language generally renders it 

unlawful “to make any call (other than a call made for 

emergency purposes or made with the prior express consent 

of the called party) using any automatic telephone dialing 

equipment or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A)

(emphasis added). The Commission, in its ruling, initially 

addressed who is properly considered the “called party” when 

a consenting party’s number is reassigned to another person: 

does “called party” refer to the person the caller expected to 

reach (whose consent had previously been obtained), or does 

it refer to the person actually reached, the wireless number’s 

present-day subscriber after reassignment (whose consent has 

not been obtained)? 

The Commission adopted the latter interpretation. 30 

FCC Rcd. at 7999-8001 ¶¶ 72-73. The result is that the 

reassignment of a wireless number extinguishes any consent 

given by the number’s previous holder and exposes the caller 

to liability for reaching a party who has not given consent. 

An alternative approach, the Commission reasoned, would 

“effectively require consumers to opt out of such calls when 

the TCPA clearly requires the opposite—that consumers opt 

in before they can be contacted.” Id. at 8004 ¶ 80. 

The agency also refused to “place any affirmative 

obligation” on new subscribers to inform callers that a 
33

wireless number now belongs to someone else. Id. at 8011 

¶ 95. The ruling thus expressly contemplates that a new

subscriber could “purposefully and unreasonably” refrain 

from informing a good-faith caller about a number’s 

reassignment “in order to accrue statutory penalties.” Id.

(formatting modified). In that regard, the Commission 

described a reported case in which the new, post-reassignment

subscriber waited to initiate a lawsuit until after having 

received almost 900 text alerts that were intended for the 

previous subscriber. Id. at 8011 ¶ 94 & n.324.

The Commission acknowledged that even the most 

careful caller, after employing all reasonably available tools 

to learn about reassignments, “may nevertheless not learn of 

reassignment before placing a call to a new subscriber.” Id. at 

8009 ¶ 88. The Commission observed that it nonetheless 

“could have interpreted the TCPA to impose a traditional 

strict liability standard on the caller: i.e., a ‘zero call’ 

approach under which no allowance would have been given 

for the robocaller to learn of the reassignment.” Id. at 8009

¶ 90 n.312. But the Commission declined to interpret the 

statute “to require a result that severe.” Id. Rather, the 

Commission read the statute to “anticipate[] the caller’s 

ability to rely on prior express consent,” which the 

Commission interpreted “to mean reasonable reliance.” Id.

(internal quotation marks omitted).

The Commission effectuated its “reasonable reliance” 

approach by enabling a caller who lacks knowledge of a 

reassignment “to avoid liability for the first call to a wireless 

number following reassignment.” Id. at 8009 ¶ 89. For that 

first call, the caller can continue to rely on the consent given 

by the “previous subscriber.” Id. at 8003 ¶ 78. The 

Commission did “not presume that a single call to a 

reassigned number will always be sufficient for callers to gain 
34

actual knowledge of the reassignment.” Id. at 8009 ¶ 90 

n.312. But it believed that “[o]ne call represents an 

appropriate balance between a caller’s opportunity to learn of 

the reassignment and the privacy interests of the new 

subscriber.” Id. at 8009 ¶ 90.

2.

In challenging the Commission’s resolution, petitioners 

first contend that the statutory reference to the consent of the 

“called party” refers to the expected recipient of a call or 

message, not the actual recipient. When a wireless number is 

reassigned without the caller’s awareness, petitioners’ 

interpretation would mean that a caller would avoid liability 

for a post-reassignment call because the “called party”—the 

former owner of the number—had given consent. In 

petitioners’ view, the Commission’s contrary interpretation of 

“called party” to refer to the new (post-reassignment) 

subscriber is foreclosed by the statute. We disagree.

Another court of appeals has examined the meaning of 

the term “called party” in the same statutory provision, 47 

U.S.C. § 227(b)(1)(A), and in the same situation of a 

reassigned wireless number formerly belonging to a 

consenting party. Soppet v. Enhanced Recovery Co., 679 F.3d 

637 (7th Cir. 2012). The Seventh Circuit explained that the 

phrase “called party” appears throughout the broader statutory 

section, 47 U.S.C. § 227, a total of seven times. 679 F.3d at 

640. Four of those instances “unmistakably denote the 

current subscriber,” not the previous, pre-reassignment

subscriber. Id. Of the three remaining instances, “one 

denotes whoever answers the call (usually the [current] 

subscriber),” and the other two are unclear. Id. By contrast, 

the court observed, the “phrase ‘intended recipient’ does not 

appear anywhere in § 227, so what justification could there be 
35

for equating ‘called party’ with ‘intended recipient of the 

call’?” Id. For those and other reasons, the court concluded 

“that ‘called party’ in § 227(b)(1) means the person 

subscribing to the called number at the time the call is made,” 

not the previous subscriber who had given consent. Id. at 

643; see also Osorio v. State Farm Bank, F.S.B., 746 F.3d 

1242, 1250-52 (11th Cir. 2014).

We find the Seventh Circuit’s analysis persuasive insofar as 

it supports concluding that the Commission was not 

compelled to interpret “called party” in § 227(b)(1)(A) to 

mean the “intended recipient” rather than the current

subscriber. The Commission thus could permissibly interpret 

“called party” in that provision to refer to the current 

subscriber. 

3.

Petitioners next argue that the Commission’s one-call 

safe harbor is arbitrary. On this score, we agree with 

petitioners.

When a caller is unaware that a consenting party’s 

wireless number has been reassigned, the Commission chose 

to allow the caller to make one (and only one) postreassignment call without incurring liability. For that one

call, the Commission understood the statutory term “prior 

express consent” to refer to the consent given by the previous 

subscriber. 30 FCC Rcd. at 8001 ¶ 73 & n.265; id. at 8003 

¶ 78. 

The Commission allowed for that one liability-free call, 

rather than impose “a traditional strict liability standard,” 

because it interpreted a caller’s ability under the statute to rely 

on a recipient’s “prior express consent” to “mean reasonable
36

reliance.” Id. at 8009 ¶ 90 n.312. And when a caller has no 

knowledge of a reassignment, the Commission 

understandably viewed the caller’s continued reliance on the 

prior subscriber’s consent to be “reasonable.”

Elsewhere in the Declaratory Ruling, the Commission 

echoed the same “reasonable reliance” understanding of the 

statute’s approval of calls based on “prior express consent.” 

The ruling accepts that a caller can rely on consent given by a 

wireless number’s “customary user” (“such as a close relative 

on a subscriber’s family calling plan”), rather than by the 

subscriber herself. Id. at 8001 ¶ 75. That is because the 

“caller in this situation cannot reasonably be expected to 

divine that the consenting person is not the subscriber.” Id. at 

8001-02 ¶ 75. The Commission reiterated in that regard that, 

in “construing the term ‘prior express consent’ in section 

227(b)(1)(A), we consider the caller’s reasonableness in 

relying on consent.” Id. at 8001 ¶ 75.

The Commission thus consistently adopted a “reasonable 

reliance” approach when interpreting the TCPA’s approval of 

calls based on “prior express consent,” including as the 

justification for allowing a one-call safe harbor when a 

consenting party’s number is reassigned. The Commission, 

though, gave no explanation of why reasonable-reliance 

considerations would support limiting the safe harbor to just 

one call or message. That is, why does a caller’s reasonable 

reliance on a previous subscriber’s consent necessarily cease 

to be reasonable once there has been a single, postreassignment call? The first call or text message, after all,

might give the caller no indication whatsoever of a possible 

reassignment (if, for instance, there is no response to a text 

message, as would often be the case with or without a 

reassignment). 
37

The Commission outlined a number of measures callers 

could undertake “that, over time, may permit them to learn of 

reassigned numbers.” Id. at 8007 ¶ 86. But the Commission 

acknowledged that callers “may nevertheless not learn of 

reassignment before placing a call to a new subscriber,” and 

that the first post-reassignment call likewise might give no 

reason to suspect a reassignment. Id. at 8009 ¶¶ 88, 90 n.312. 

In that event, a caller’s reasonable reliance on the previous 

subscriber’s consent would be just as reasonable for a second 

call.

To be sure, the Commission stated that it found “no basis 

in the statute or the record before [it] to conclude that callers 

can reasonably rely on prior express consent beyond one call 

to reassigned numbers.” Id. at 8009-10 ¶ 90 n.312. But the 

Commission did not elaborate on—or otherwise support—its 

conclusory observation to that effect. And the statement is 

hard to square with the Commission’s concession that the first 

call may give no notice of a reassignment, or with the 

Commission’s disavowal of any expectation that a caller 

should “divine from the called consumer’s mere silence the 

current status of a telephone number.” Id. (brackets omitted). 

In that light, no cognizable conception of “reasonable 

reliance” supports the Commission’s blanket, one-call-only 

allowance.

At times, the Commission indicated that its one-call safe 

harbor intends to give callers additional “opportunity” to find 

out about a possible reassignment. E.g., id. at 8009 ¶ 89; id. 

at 8010 ¶ 91. There is no indication, though, that the interest 

in giving callers such an opportunity is independent of the 

interest in giving effect to a caller’s reasonable reliance. 

After all, a caller also has an opportunity to learn of a 

reassignment before the first call. The reason to allow even 

one, liability-free, post-reassignment call—the reason the 
38

Commission cared about affording an opportunity to learn 

about reassignment at all—is in order to give effect to a 

caller’s reasonable reliance on the previous subscriber’s 

consent. 

Indeed, the Commission’s one-call safe harbor applies 

“over an unlimited period of time.” Id. at 8000 ¶ 72 n.257. 

If the goal were simply to provide an expanded opportunity to 

learn about a reassignment, the Commission presumably 

would have allowed for a given period of time. It declined to 

do so, id. at 8009 ¶ 89, opting instead to permit a single call 

regardless of whether it occurs within minutes or months of a 

reassignment.

For substantially the same reasons, the Commission’s 

one-call-only approach cannot be salvaged by its suggestion 

that callers rather than new subscribers should bear the risk 

when calls are made (or messages are sent) to a reassigned 

number. Id. at 8009-10 ¶ 90 n.312. That consideration would 

equally support a zero-call, strict-liability rule. But the 

Commission specifically declined to adopt “a result that 

severe.” Id. Having instead embraced an interpretation of the 

statutory phrase “prior express consent” grounded in 

conceptions of reasonable reliance, the Commission needed to 

give some reasoned (and reasonable) explanation of why its 

safe harbor stopped at the seemingly arbitrary point of a 

single call or message. The Commission did not do so.

The Seventh Circuit’s decision in Soppet, discussed 

earlier, is not to the contrary. There, the court assumed that 

“any consent previously given . . . lapses when [a] [c]ell 

[n]umber is reassigned.” 679 F.3d at 641. The court, though, 

did not have before it an agency interpretation under which 

the previous subscriber’s consent does not lapse with 

reassignment: the premise of the Commission’s one-call safe 
39

harbor is that a caller can continue to rely on the previous 

subscriber’s consent. The question we face is, why should 

that necessarily stop with a single call? Soppet does not speak 

to that question, and so does not cast doubt on our conclusion 

that the Commission failed to give it a satisfactory answer.

Finally, the Commission’s failure in that regard requires 

setting aside not only its allowance of a one-call safe harbor, 

but also its treatment of reassigned numbers more generally. 

When we invalidate a specific aspect of an agency’s action, 

we leave related components of the agency’s action standing 

only if “we can say without any ‘substantial doubt’ that the 

agency would have adopted the severed portion on its own.” 

Am. Petroleum Inst. v. EPA, 862 F.3d 50, 71 (D.C. Cir. 2017) 

(per curiam) (internal quotation marks omitted).

Here, we have no such assurance. If we were to excise 

the Commission’s one-call safe harbor alone, that would leave 

in place the Commission’s interpretation that “called party” 

refers to the new subscriber. And that in turn would mean 

that a caller is strictly liable for all calls made to the 

reassigned number, even if she has no knowledge of the 

reassignment. 

We cannot be certain that the agency would have adopted 

that rule in the first instance. Significantly, the Commission 

said that it “could have interpreted the TCPA to impose a 

traditional strict liability standard,” i.e., “a ‘zero call’ 

approach.” 30 FCC Rcd. at 8009 ¶ 90 n.312. But the agency 

declined to “require a result that severe,” opting instead for a 

one-call safe harbor. Id. We cannot say without any 

substantial doubt that the agency would have embraced the

“severe” implications of a pure, strict-liability regime even in 

the absence of any safe harbor. As a result, we must set aside 
40

the Commission’s treatment of reassigned numbers as a 

whole.

Notably, the Commission is already on its way to 

designing a regime to avoid the problems of the 2015 ruling’s 

one-call safe harbor. The Commission recently sought 

comment on potential methods for “requir[ing] service 

providers to report information about number reassignments 

for the purposes of reducing unwanted robocalls.” In re 

Advanced Methods to Target and Eliminate Unlawful 

Robocalls, Second Notice of Inquiry, 32 FCC Rcd. 6007, 

6010 ¶ 9 (2017). Most of its proposals envision creating a 

comprehensive repository of information about reassigned 

wireless numbers. See id. at 6012-13 ¶¶ 15-19. The 

Commission is also considering whether to provide a safe 

harbor for callers that inadvertently reach reassigned numbers 

after consulting the most recently updated information. See 

id. at 6012 ¶ 14. Those proposals would naturally bear on the 

reasonableness of calling numbers that have in fact been 

reassigned, and have greater potential to give full effect to the 

Commission’s principle of reasonable reliance.

C. 

It is undisputed that consumers who have consented to 

receiving calls otherwise forbidden by the TCPA are entitled 

to revoke their consent. See 2015 Declaratory Ruling, 30 

FCC Rcd. at 7996 ¶ 62. The statute, however, does not 

elaborate on the processes by which consumers may validly 

do so. The Commission sought to resolve the matter in its 

Declaratory Ruling. 

The Commission had been petitioned to clarify that 

callers can unilaterally prescribe the exclusive means for 

consumers to revoke their consent. It explicitly denied that 
41

request. Allowing “callers to designate the exclusive means 

of revocation,” the Commission believed, could “materially 

impair” the “right of revocation.” Id. at 7997 ¶ 66.

The Commission instead concluded that “a called party 

may revoke consent at any time and through any reasonable 

means”—orally or in writing—“that clearly expresses a desire 

not to receive further messages.” Id. at 7989-90 ¶ 47; id. at 

7996 ¶ 63. In assessing whether a revocation request meets 

the “reasonable means” standard, the Commission said it 

would consider “the totality of the facts and circumstances.” 

Id. at 7996 ¶ 64 n.233. One relevant factor is “whether the 

caller could have implemented mechanisms to effectuate a 

requested revocation without incurring undue burdens.” Id. 

Another consideration is “whether the consumer had a 

reasonable expectation that he or she could effectively 

communicate his or her request . . . in that circumstance.” Id.

Petitioners challenge the Commission’s treatment of 

revocations on various grounds, none of which we find 

persuasive. Petitioners’ chief objection is that the 

Commission’s approach is arbitrary and capricious in 

eschewing the establishment of standardized revocation 

procedures in favor of an unduly uncertain, any-reasonablemeans standard. Without the certainty of standardized 

procedures, petitioners fear, they will be able to ward off 

TCPA liability only by “tak[ing] exorbitant precautions.” 

ACA Int’l Br. 57. 

We think petitioners’ concerns are overstated. The 

Commission’s ruling absolves callers of any responsibility to 

adopt systems that would entail “undue burdens” or would be 

“overly burdensome to implement.” 30 FCC Rcd. at 7996 

¶ 64 & n.233. In light of that assurance, callers would have 

no need to train every retail employee on the finer points of 
42

revocation. And callers will have every incentive to avoid 

TCPA liability by making available clearly-defined and easyto-use opt-out methods. If recipients are afforded such 

options, any effort to sidestep the available methods in favor 

of idiosyncratic or imaginative revocation requests might well 

be seen as unreasonable. The selection of an unconventional 

method of seeking revocation might also betray the absence 

of any “reasonable expectation” by the consumer that she 

could “effectively communicate” a revocation request in the 

chosen fashion. Id. 

Petitioners observe that the Commission’s ruling itself 

dictates particular opt-out mechanisms for certain types of 

time-sensitive banking- and healthcare-related calls that the 

Commission exempted from the TCPA’s consumer consent 

requirements. Id. at 8028 ¶ 138; id. at 8032 ¶ 147. If the 

Commission prescribed specific opt-out methods for those 

types of calls, petitioners ask, then why not similarly set out 

standardized means of revocation for all calls? 

The Commission was not required to treat the two 

situations in a parallel manner. For the banking- and 

healthcare-related calls, the Commission found that the 

communications were sufficiently important to warrant an 

exemption from the otherwise-applicable obligation to obtain 

prior consent. Id. at 8023 ¶ 125. As a result, the default rule 

for those calls is that they should be allowed (without regard 

to consent), such that the availability of an opt-out can be 

conditioned on adhering to specific procedures. By contrast, 

the default rule for non-exempted calls is that they are 

disallowed (absent consent), such that the availability of an 

opt-out naturally could be broader. In that context, the 

Commission could reasonably elect to enable consumers to 

revoke their consent without having to adhere to specific 

procedures.
43

Finally, petitioners object to the Declaratory Ruling 

insofar as it might preclude callers and consumers from 

contractually agreeing to revocation mechanisms. The 

Commission correctly concedes, however, that the ruling “did 

not address whether contracting parties can select a particular 

revocation procedure by mutual agreement.” FCC Br. 64 

n.16. The ruling precludes unilateral imposition of revocation 

rules by callers; it does not address revocation rules mutually 

adopted by contracting parties. Nothing in the Commission’s 

order thus should be understood to speak to parties’ ability to 

agree upon revocation procedures. 

D.

The last set of challenges before us, brought by petitioner 

Rite Aid, concerns the scope of the Commission’s exemption 

of certain healthcare-related calls from the TCPA’s priorconsent requirement for calls to wireless numbers. The 

Commission is statutorily authorized to exempt from that 

requirement “calls to a telephone number assigned to a 

cellular telephone service that are not charged to the called 

party, subject to such conditions as the Commission may 

prescribe as necessary in the interest of the privacy rights this 

section is intended to protect.” 47 U.S.C. § 227(b)(2)(C).

The Commission was petitioned to exempt from the 

consent requirement “certain non-telemarketing, healthcare 

calls” alleged to “provide vital, time-sensitive information 

patients welcome, expect, and often rely on to make informed 

decisions.” 2015 Declaratory Ruling, 30 FCC Rcd. at 8030 

¶ 143. The agency acknowledged the “exigency and public 

interest” in various types of healthcare-related calls, including 

ones “regarding post-discharge follow-up intended to prevent 

readmission, or prescription notifications.” Id. at 8031 ¶ 146. 

But it was “concerned that these policy arguments are not 
44

true” for other types of healthcare calls. Id. Specifically, the 

Commission “fail[ed] to see the same exigency and public 

interest in calls regarding account communications and 

payment notifications.” Id.

Consequently, the Commission granted the requested 

exemption but “restrict[ed] it to calls for which there is 

exigency and that have a healthcare treatment purpose, 

specifically: appointment and exam confirmations and

reminders, wellness checkups, hospital pre-registration 

instructions, pre-operative instructions, lab results, postdischarge follow-up intended to prevent readmission, 

prescription notifications, and home healthcare instructions.” 

Id. The exemption would not cover calls “that include 

telemarketing, solicitation, or advertising content, or which 

include accounting, billing, debt-collection, or other financial 

content.” Id.

Petitioner Rite Aid challenges the Commission’s 

exemption for select healthcare-related calls on the grounds 

that it conflicts with another federal statute (the Health 

Insurance Portability and Accountability Act, or HIPAA) and 

is arbitrary and capricious. Rite Aid’s arguments 

misunderstand the relevant statutory terrain, and we reject 

them. 

1.

At the outset, we must satisfy ourselves that we have 

jurisdiction to entertain Rite Aid’s challenge. Rite Aid has 

been styled a petitioner here, but it did not formally petition 

the Commission in the proceedings before the agency. The 

petition granted by the Commission in part was filed by the 

American Association of Healthcare Administrative 

Management (the Association). Rite Aid expressed “support” 
45

for the Association’s petition for a declaratory ruling and 

exemption, and it also asked the Commission to “address 

certain additional issues.” Comments of Rite Aid, Joint 

App’x 850. But it participated only by commenting on the 

Association’s petition rather than filing one of its own. As a 

result, with respect to relief that only Rite Aid sought, the 

Commission “decline[d] to fully address th[at] request for 

clarification . . . raised in a comment to a pending Petition.” 

2015 Declaratory Ruling, 30 FCC Rcd. at 8028-29 ¶ 141 

n.471. The Association did not appeal the FCC’s partial 

denial of its requested exemption. Instead, Rite Aid has 

petitioned the court to review that denial.

Direct review of final FCC orders is governed by the 

Hobbs Act, under which “[a]ny party aggrieved by [a] final 

order” of the Commission may petition for review of that 

order. 28 U.S.C. § 2344. We have consistently held that the 

phrase “party aggrieved” requires that petitioners have been 

parties to the underlying agency proceedings, not simply 

parties to the present suit who are aggrieved in a 

constitutional (Article III) sense. See Simmons v. ICC, 716 

F.2d 40, 42 (D.C. Cir. 1983). The question here is whether 

commenting on a petition in agency proceedings that resulted 

in a declaratory ruling suffices to confer “party aggrieved” 

status on a litigant whose position the agency rejected.

We find it does. For agency proceedings that do not 

require intervention as a prerequisite to participation, our 

decisions have recognized that “party aggrieved” means a 

party who has “made a full presentation of views to the 

agency.” Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1193 

(D.C. Cir. 1987). Rite Aid fulfilled that requirement. Just as 

“submitting comments” confers “party aggrieved” status in 

the context of a rulemaking (assuming an adverse outcome), 

Prof’l Reactor Operator Soc’y v. U.S. Nuclear Regulatory
46

Comm’n, 939 F.2d 1047, 1049 n.1 (D.C. Cir. 1991), one who 

comments on another’s petition for a rulemaking or 

declaratory ruling has “present[ed] its view to the agency [so 

as] to qualify as a ‘party,’” S. Pac. Transp. Co. v. ICC, 69 

F.3d 583, 588 (D.C. Cir. 1995)—at least insofar as the issues 

appealed were also taken up by the petitioner below (as they 

were here). Rite Aid afforded the Commission an opportunity 

to consider its position on the Association’s exemption 

request. We therefore proceed to the substance of Rite Aid’s 

challenge.

2.

Rite Aid contends that, “[b]y restricting otherwise 

permissible HIPAA communications,” the Declaratory Ruling 

“conflicts with another federal law.” Rite Aid Br. 12 (quoting 

NextWave Pers. Commc’ns, Inc. v. FCC, 254 F.3d 130, 149 

(D.C. Cir. 2001)). It essentially argues that any partial 

exemption of healthcare-related communications would have 

been unlawful, because HIPAA—the exclusive source of 

federal law on the disclosure of protected health 

information—operates of its own force to supersede any 

TCPA prohibition on healthcare calls. Rite-Aid is incorrect. 

There is no obstacle to complying with both the TCPA and 

HIPAA; “[t]he two statutes provide separate protections.” 

Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 

1125 (11th Cir. 2014). 

Under HIPAA regulations, covered entities and their 

business associates presumptively “may not use or disclose 

protected health information.” 45 C.F.R. § 164.502(a). But 

they are generally permitted to use or disclose that 

information “for treatment, payment, or health care 

operations.” Id. § 164.506(a). Rite Aid complains that the 

partial exemption granted in the Declaratory Ruling conflicts 
47

with HIPAA because it stops short of exempting billing- and 

account-related communications—i.e., ones “for . . . 

payment.” Id. But all that § 164.506(a)’s exclusion does is to 

carve out an exception to civil and criminal liability for using 

or disclosing protected health information. See 42 U.S.C. 

§§ 1320d-5, 1320d-6. It says nothing about the 

Commission’s authority to exempt (or refrain from 

exempting) certain kinds of calls from the TCPA’s consent 

requirement.

In confining the use of its exemption authority, the 

Commission did not restrict communications that HIPAA 

requires be permitted to flow freely. It simply declined to 

make certain exchanges even less burdensome than they 

would have been by default. If Rite Aid were correct, 

healthcare providers could use ATDS equipment to bombard 

nonconsenting wireless users with calls and texts concerning 

outstanding charges without incurring TCPA liability. 

Nothing in HIPAA commands such a result, and we see no 

basis to interpret it to frustrate the TCPA in that way.

3.

Finally, Rite Aid contends that the Declaratory Ruling’s 

exemption for certain healthcare calls is arbitrary and 

capricious. Neither of its suggested grounds is persuasive.

a. Rite Aid first argues that the Commission failed to 

explain its purported departure from its earlier practice of 

exempting HIPAA-protected communications. In addition to 

its restrictions on calls to wireless numbers, the TCPA also 

forbids the use of an ATDS “to initiate any telephone call to 

any residential telephone line using an artificial or 

prerecorded voice to deliver a message without the prior 

express consent of the called party,” unless one of three 
48

exceptions applies. 47 U.S.C. § 227(b)(1)(B) (emphasis 

added). 

In a 2012 Order, the Commission exempted from that 

consent requirement “prerecorded health care-related calls to 

residential lines, which are already regulated by” HIPAA. In 

re Rules and Regulations Implementing the Telephone 

Consumer Protection Act of 1991 (2012 Order), 27 FCC Rcd. 

1830, 1837 ¶ 18 (2012). Some parts of the Order suggested 

that its exemption reached no further than the one granted in 

2015’s Declaratory Ruling for calls to wireless numbers. 

Exempted calls were described as “promot[ing] important 

communications . . . such as prescription refills and 

immunization reminders,” id. at 1855 ¶ 63 n.192, and 

“concern[ing] consumers’ health, not the purchase of a good 

or service,” id. at 1856 ¶ 63 n.195. But the Order elsewhere 

characterized its exemption as covering “all prerecorded 

health care-related calls to residential lines that are subject to 

HIPAA.” Id. at 1852 ¶ 57 (emphases added).

The 2012 Order’s exemption was codified in 47 C.F.R. 

§ 64.1200(a)(3)(v). That regulation did not use the phrase 

“health care-related call[],” but instead referred to “‘health 

care’ message . . . [as] defined in the HIPAA Privacy Rule, 45 

C.F.R. § 160.103.” 47 C.F.R. § 64.1200(a)(3)(v). Likewise, 

§ 160.103 does not mention the term “health care message.” 

But it does define “health care” as “care, services, or supplies 

related to the health of an individual.” 45 C.F.R. § 160.103. 

That term includes, among many other things, “[s]ale or 

dispensing of a drug, device, equipment, or other item in 

accordance with a prescription.” Id. A “‘health care’ 

message” is presumably a message pertaining to any of the 

topics that “health care” is defined to include. We assume for 

present purposes that some calls concerning the “[s]ale . . . of 

a drug . . . in accordance with a prescription” would relate to 
49

“billing,” which the 2015 Declaratory Ruling did not exempt 

from the consent requirement. 

Rite Aid is therefore correct that, in one sense, the 2012 

exemption swept more broadly than the 2015 version. We 

also accept that the 2012 Order cited a number of 

“technology-agnostic justifications” for exempting all 

prerecorded healthcare-related calls subject to HIPAA and 

made to residential lines. Rite Aid Br. 5. For example, the 

Commission believed that such calls “ensure continued 

customer access to health care-related information” and 

would not lead to “coercive or abusive” interactions. 2012 

Order, 27 FCC Rcd. at 1853-54 ¶¶ 59-60. 

The relevant question is whether the Commission acted 

arbitrarily and capriciously in affording a narrower exemption 

for healthcare-related calls made to wireless numbers. We 

find that it did not. Even if one might hypothesize “important 

reasons for treating residential and wireless telephone lines 

the same,” Rite Aid Br. 9, the TCPA itself presupposes the 

contrary—that calls to residential and wireless numbers 

warrant differential treatment. 

Unlike with the autodialer restrictions on calls to wireless 

numbers, callers are free to use ATDS equipment to dial 

residential lines as long as no “artificial or prerecorded voice” 

is used. 47 U.S.C. § 227(b)(1)(B). The statute itself 

contemplates that calls to wireless numbers “tread [more] 

heavily upon . . . consumer privacy interests.” 2012 Order, 27 

FCC Rcd. at 1855 ¶ 63. That concern directly informed the 

2015 exemption’s scope: the Commission concluded that 

messages “not critical to a called party’s healthcare . . . do not 

justify setting aside a consumer’s privacy interests.” 2015 

Declaratory Ruling, 30 FCC Rcd. at 8031 ¶ 146. 
50

In short, there is nothing inherently contradictory about 

easing restrictions on certain kinds of calls to landlines, but 

not to cellular phones. And Rite Aid fails to mention another 

variable that confounds direct comparisons between the two 

exemptions. As codified, the 2012 exemption applies only to 

calls that “us[e] an artificial or prerecorded voice to deliver a 

message,” 47 C.F.R. § 64.1200(a)(3); the Declaratory 

Ruling’s exemption is not so limited. We therefore reject Rite 

Aid’s first arbitrary-and-capricious challenge.

b. Lastly, Rite Aid argues that the Commission acted 

arbitrarily by failing to recognize that all healthcare-related 

calls satisfy the TCPA’s “emergency purposes” exception to 

the consent requirement. As used in the Act, “[t]he term 

emergency purposes means calls made necessary in any 

situation affecting the health and safety of consumers.” 47 

C.F.R. § 64.1200(f)(4). But Rite Aid identifies no calls 

satisfying that exception that were not already subject to the 

2015 exemption. It would be implausible to conclude that 

calls concerning “telemarking, solicitation, or advertising 

content, or which include accounting, billing, debt-collection, 

or other financial content” are made for “emergency 

purposes.” 2015 Declaratory Ruling, 30 FCC Rcd. at 8031 

¶ 146. Even if accounting systems are in some sense 

“necessary” to the continued provision of healthcare, 

“[t]imely delivery of these types of messages is not critical” 

to that goal. Id. (emphasis added). 

In marked contrast, the Commission recently exempted 

calls concerning certain time-sensitive risks to students’ 

health and safety in the school setting. That list of scenarios 

included “weather closures, fire, . . . threats,” “dangerous 

persons, health risks (e.g., toxic spills), and unexcused 

absences.” In re Rules and Regulations Implementing the 

Telephone Consumer Protection Act of 1991, 31 FCC Rcd. 
51

9054, 9061 ¶ 17, 9063 ¶ 21 (2016). In declining a request to 

interpret the emergency-purposes exception far more 

expansively, we are guided by its role in the statutory scheme. 

Consumers may find themselves wholly unable to stave off 

calls satisfying the exception. That is because, by definition, 

such calls fall outside the TCPA’s consent framework; callers 

can make them even if recipients are known to object. 

Advertisements, solicitations, and post-treatment financial 

communications do not arise from the sorts of “emergencies” 

that would justify suspending the TCPA’s consent regime.

The Commission was empowered to draw the distinction 

it did, and it adequately explained its reasons for doing so. 

We therefore reject Rite Aid’s arbitrary-and-capricious 

challenge. 

* * * * *

For the foregoing reasons, we grant in part and deny in 

part the petitions for review.

 So ordered.