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Notice to the United States Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for Review

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Notice to the United States Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for Review Case MCP No. 134 Document 1 Filed 07/23/15 Page 1 of 2 NOTICE TO THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION OF MULTICIRCUIT PETITIONS FOR REVIEW IN RE: Federal Communications Commission, MCP No.____ In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, FCC 15-72 (released July 10, 2015) NOTICE OF MULTICIRCUIT PETITIONS FOR REVIEW Pursuant to 28 U.S.C. § 2112(a)(3) and the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, the Federal Communications Commission hereby notifies the United States Judicial Panel on Multidistrict Litigation of three petitions for review of the same final agency action. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, FCC 15-72 (released July 10, 2015). These petitions for review were filed in two different courts of appeals within ten days after issuance of the agency action and received by the FCC from the petitioners within the applicable ten-day period. As required by Panel Rule 25.2, we submit with this notice: (1) a schedule (Attachment A) listing the petitions for review; (2) copies of each petition (Attachment B); and (3) the order Case MCP No. 134 Document 1 Filed 07/23/15 Page 2 of 2 the petitioners are challenging (Attachment C). In accordance with Panel Rule 25.3, as indicated in the attached certificate of service, the FCC is serving this notice on the clerks of the courts where petitions for review have been filed as well as on counsel for all parties in the circuit petitions for review. Respectfully submitted /s/ Richard K. Welch Richard K. Welch Deputy Associate General Counsel Scott M. Noveck Counsel Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 Phone: (202) 418-7294 Fax: (202) 418-2819 Email: [email protected] July 23, 2015 2 Case MCP No. 134 Document 1-1 Filed 07/23/15 Page 1 of 1 ATTACHMENT A 1. Issuance date of the relevant agency order: July 10, 2015 2. Cases filed: Prof’l Ass’n for Customer Engagement, Inc. v. FCC Seventh Circuit No. 15-2489 Filed: July 14, 2015 Received by the FCC: July 15, 2015 ACA International v. FCC & USA D. C. Circuit No. 15-1211 Filed: July 14, 2015 Received by the FCC: July 14, 2015 Sirius XM Radio Inc. v. FCC D. C. Circuit No. 15-1218 Filed: July 14, 2015 Received by the FCC: July 14, 2015 Case MCP No. 134 Document 1-2 Filed 07/23/15 Page 1 of 2 IN THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION PROOF OF SERVICE I, Richard K. Welch, hereby certify that on July 23, 2015, I electronically filed the foregoing Notice to the Judicial Panel on Multidistrict Litigation of the Multicircuit Petitions for Review with the Clerks of the United States Courts of Appeals for the Seventh and D.C. Circuits by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system Brian R. Melendez Steven J. Mintz, Esq. Dykema Gossett PLLC Kristen C. Limarzi 4000 Wells Fargo Center U.S. Department of Justice 90 South Seventh Street Antitrust Division/Appellate Division Minneapolis, MN 55402 950 Pennsylvania Avenue, NW [email protected] Room 3224 Counsel for: ACA International Washington, DC 20530 [email protected] [email protected] Shay Dvoretzky Counsel for: USA. Jones Day 51 Louisiana Avenue, NW Washington, DC 20001 [email protected] Counsel for: Siruis XM Radio Inc. & Professional Association For Customer Engagement Case MCP No. 134 Document 1-2 Filed 07/23/15 Page 2 of 2 /s/ Richard K. Welch Scott M. Noveck Federal Communications Commission 445 Twelfth Street, SW Washington, D.C. 20554 Phone: (202) 418-7294 Fax: (202) 418-2819 Email: [email protected] Case MCP No. 134 Document 1-3 Filed 07/23/15 Page 1 of 32 IN THE UNITED STATES COURT OF APPEALS ZOIS Jur?~ ~ ~¥VENTH CIRCillT PROFESSIONAL ) ASSOCIATION FOR ) CUSTOMER ENGAGEMENT, ) INC. ) Case No. 15- ) Petjtjoner, ) U.S.C.A.-7th Circuit ) RECEIVED v. ) JUL 14 2015 AB FEDERAL COMMUNICATIONS ) COMMISSION, ) GINO J. AGNELLO CLERK Respondent. PETITION FOR REVIEW Pursuant to 5 U.S. C. § 706, 4 7 U.S.C. § 402(a), 28 U.S.C. §§ 2342(1) and 2344, and Federal Rule of Appellate Procedure 15(a), the Professional Association for Customer Engagement, Inc. (PACE) hereby petitions this Court for review of the Federal Communications Commission's order captioned In re Matter ofRules and Regulatjons Implemen6ng the Telephone Consumer Protec6on Act of 1991, Declaratory Ruling and Order, CG Docket No. 02-278, WC Docket No. 07-135, FCC 15-72 (released July 10, 2015). 1 A copy of the Declaratory Ruling and Order is attached as 1 PACE files this protective petition out of an abundance of caution. Under 28 U.S.C. § 2344, parties may seek review of the Declaratory Ruling and Order "within 60 days after its entry," and under 47 U.S.C. § 405(a) that date "shall be computed from the date upon which the Commission Case MCP No. 134 Document 1-3 Filed 07/23/15 Page 2 of 32 Case: 15-2489 Document: 1-1 Filed: 07/14/2015 Pages: 171 Attachment A. Venue is proper pursuant to 28 U.S.C. § 2343 because PACE has its principal office in Indianapolis, Indiana. Among other things, the Declaratory Ruling and Order vastly expands the TCPA’s reach by sweeping in calls to wireless numbers made from equipment that lacks the present 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). But see (continued…) gives public notice of the order.” The FCC’s regulations then specify differing dates of “public notice” for different types of agency action, but there is some confusion about how those regulations apply in the context of omnibus declaratory rulings that resolve broad questions of general applicability, as the Declaratory Ruling and Order does. See 47 C.F.R. § 1.4(b)(1) (“public notice” occurs upon publication in the Federal Register for “all documents in notice and comment and non-notice and comment rulemaking proceedings” required by the Administrative Procedure Act to be published there); id. § 1.4(b), Note (“Licensing and other adjudicatory decisions with respect to specific parties that may be associated with or contained in rulemaking documents are governed by the provisions of §1.4(b)(2)”); id. §1.4(b)(2) (“public notice” occurs on the “release date” for “non-rule making documents released by the Commission or staff”). In light of this potential confusion, PACE files this petition in case the Declaratory Ruling and Order is construed to be final on the date it was issued (as opposed to after Federal Register publication), and the ten- day period in which a party must file a petition for review to “avail itself of procedures established for selection of a court in the case of multiple appeals”—that is, the lottery procedures under 28 U.S.C. § 2112(a)—is likewise construed to begin on that date. See, e.g., Western Union Tel. Co. v. FCC, 773 F.2d 375, 380 (DC Cir. 1985) (encouraging parties to file protective and supplemental petitions where there are questions surrounding the date of public notice). - 2 - Case MCP No. 134 Document 1-3 Filed 07/23/15 Page 3 of 32 Case: 15-2489 Document: 1-1 Filed: 07/14/2015 Pages: 171 Declaratory Ruling and Order ¶¶ 10-24. The Declaratory Ruling and Order also improperly defines the term “called party” for purposes of the TCPA’s consent provisions as the “current subscriber (or non-subscriber customary user of the phone)” rather than “intended recipient,” id. ¶ 72, and gives callers only one call before holding them liable for calls made to numbers that, without the caller’s knowledge, had been reassigned to persons other than one from whom the caller had express consent, id. ¶¶ 85-97. The Declaratory Ruling and Order also sets forth certain rules regarding the TCPA’s consent defense. Id. ¶¶ 47-70, 98-102. The Declaratory Ruling and Order is arbitrary and capricious, an abuse of discretion, in excess of the FCC’s statutory authority, and otherwise contrary to the Constitution and other laws. Accordingly, PACE respectfully requests that this Court (1) hold that the FCC’s Declaratory Ruling and Order was unlawful, (2) vacate the Declaratory Ruling and Order, (3) remand to the FCC for an order consistent with this Court’s findings, or (4) provide such other relief as this Court deems appropriate. - 3 - Case MCP No. 134 Document 1-3 Filed 07/23/15 Page 4 of 32 Case: 15-2489 Document: 1-1 Filed: 07/14/2015 Pages: 171 Dated: June 14, 2015 Respectfully submitted, /s/ Shay Dvoretzky Michele Shuster Shay Dvoretzky MAC MURRAY, PETERSEN & Michael F. Murray SHUSTER Jeffrey R. Johnson 6530 West Campus Oval, Suite 210 JONES DAY New Albany, Ohio 43054 51 Louisiana Avenue NW Tel: (614) 939-9955 Washington, DC 20001-2113 Fax: (614) 939-9954 Tel: (202) 879-3474 [email protected] Fax: (202) 626-1700 [email protected] Thomas Demitrack JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 Tel: (216) 586-7141 Fax: (216) 579-0212 [email protected] Counsel for the Professional Association for Customer Engagement, Inc. - 4 - Case MCP No. 134 Document 1-3 Filed 07/23/15 Page 5 of 32 Case: 15-2489 Document: 1-1 Filed: 07/14/2015 Pages: 171 CERTIFICATE OF SERVICE Within one business day of this petition for review being filed: a.) I will cause a date-stamped copy of this petition to be served by hand on these persons: Loretta E.
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