Industry Posts Statement For The Record Ahead Of Big Subcommittee Hearing On “Modernizing” The TCPA
Tomorrow is the big hearing entitled, “Modernizing the Telephone Consumer Protection Act” in which the House Communications and Technology Subcommittee, chaired by Rep. Greg Walden (R-OR), will discuss, well, modernizing the TCPA. You should watch it along with me tomorrow if you’re really really bored. Click here.
For industry, modernizing the TCPA means making sense of a statute that has grown in fits and spurts for the last 25 years. As practitioners in this area know, the case law interpreting the statute grew in patchwork fashion with innumerable district court decisions reaching divergent rulings interpreting the hopelessly vague statute. The FCC, in turn, has taken several hacks at clarifying the statute but has only made matters more confusing. And even the FCC does not have the final word as its recent “Omnibus” TCPA ruling is currently on appeal to the DC Circuit.
But enough backstory, tomorrow begins a new era of TCPA clarity and utility and several trade groups have submitted an excellent roadmap to help Congress achieve just that. In their statement for the record the American Bankers Association, Consumer Bankers Association, Credit Union National Association, Financial Services Roundtable, and National Association of Federal Credit Unions (hereinafter the “Good Guys”) submit several recommendations to Congress that would help make sense of the statute. The Good Guys lead off by noting that “[t]he balance Congress struck between protecting consumers and allowing routine and important communications between a business and its customers to occur has been lost—and, all too often, the very consumers Congress sought to protect are harmed.” Boy are they right. When the FCC first implemented the statute the Commission noted that “[i]ndividuals’ privacy rights, public safety interests, and commercial freedom of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.” See FCC REPORT AND ORDER Adopted: September 17, 1992 at par. 3. But no sign of “balance” has been spotted in any of the Commission’s recent TCPA rulings in about a decade.
Unfortunately the FCC has gone into full-blown consumer protection mode and, ironically, to the detriment of consumers. Reading the Commission’s recent rulings you’d think that receiving an errant phone call was literally the worst thing in the world. Worse than having one’s home foreclosed or one’s car repossessed. Worse than having one’s accounts hacked and one’s identity stolen. Worse than not being informed about disaster or student aid programs. Because, as the Good Guy’s filing points out, all of these occurrences become far more likely due to the Commission’s recent rulings restricting businesses’ constitutional right to call their customers.
Most frustrating for those of us practicing in this area, of course, is that this is not what Congress intended when the statute was drafted. But that frustration can fade away now that a new Congress has a chance to say what it intends. All that came before was merely a sand castle built a bit too close to the sea. It can all be swept away to be replaced by something—hopefully—far more elegant and useful.
Toward that end, the Good Guy’s final recommendation is—in my humble opinion—their best one. They suggest that “Congress Should Reform the TCPA by Imposing a Damages Cap.” Great suggestion. But I’d go one further—Congress should do away with the private right of action altogether. When the TCPA was first drafted it did not include a private right of action. After it left committee a private right of action was tacked on at the last minute. At the time the FCC did not want to enforce the statute—it didn’t see a need for it I am told. The private right of action that was added was poorly worded and cumbersome; designed to allow suits only in state court and preferably in small claims actions. The $500.00 per call liability was imposed to encourage such individual suits. That’s all well and good but we all know what happened. Courts fumbled it. The FCC fumbled it. And now everyone can sue in any court for uncapped damages. But there is no need for the multi-(b)(m)illion dollar class action TCPA shakedowns that so many businesses are now facing. There’s no need for private enforcement of the statute at all.
But today is not a day for my soap box rant. It’s a day to celebrate the prospect of sanity returning to the TCPA landscape. Sanity Eve. And when the smoke clears, let’s hope the Good Guys win.