Even Members of Congress Are Confused by the FCC’s Latest Ruling

FCCI was contemplating a monthly column given the confusion surrounding the FCC’s recent rulings.  I guess I better make it weekly.

Here’s this week’s episode.

  • The Commission was running two parallel NPRM proceedings related to the TCPA and calls placed on behalf of the federal government.
  • One proceeding was mandated by Congress as part of the Balanced Budget Act TCPA Amendment (BBA) back in 2015—which expressly exempted calls placed to collect on federally-backed debt from the TCPA.
  • The other proceeding was initiated by the FCC on its own in response to a petition from something called Broadnet.
  • The FCC decided to rule on the Broadnet petition first because the FCC is a Mess.
  • The ruling on the Broadnet petition seems to exempt calls on behalf of the federal government but doesn’t specifically mention collection calls.

Naturally members of Congress want to know, what’s going on.  Specifically, does the ruling on Broadnet mean that collection calls placed on federally-backed debt are now exempt from TCPA coverage, or must we still wait for the BBA NPRM proceeding to resolve that issue?

So on Tuesday when all five Commissioners of the FCC were called before the House Energy and Commerce Committee for an oversight hearing, the final issue on the agenda was Broadnet.

The hearing can be found here.

The TCPA questioning starts at 3:52:18 and it is a well worth a watch.

In a nut shell, U.S. Rep. Chris Collins (R-N.Y.) questioned Chairman Wheeler about the Broadnet ruling, asking directly whether folks collecting on federally-backed debt are now exempt from the TCPA. Chairman Wheeler responded directly: “That is not what we said.” So far so good. But then he meandered around discussing the NPRM on the BBA amendment—which is not yet a final rule—as if it were: i) a final rule; and ii) what the Congressman was talking about. Neither was the case.

Not to worry though, here comes Commissioner O’Reilly jumping in to save the day. He very politely begins explaining to the Congressman that there are two different rulings on the subject and that the Chairman was discussing a different NPRM, related to, but separate from the Broadnet. Before O’Reilly could untangle the mess, however, the Chairman doubled-down, rebuking O’Reilly that Representative Collins was not actually talking about Broadnet at all, and then cross-examining the Congressman about which NPRM he was talking about.

Congressman Collins, of course, had no idea what NPRM he was referring to (why would he?) so the Chairman triumphantly concludes his remarks explaining the four things a debt collector must do before they can collect a debt under the BBA NPRM. At the end of the exchange a visibly confused Congressman Collins meekly offers that he had some constituents “afraid to make some phone calls” and that he was just trying to obtain clarity for them. I know that feeling. Well.

It does seem clear, at least, that Chairman Wheeler does not think the Broadnet ruling applies to collection calls. That will have to pass for clarity for the time being.

Until next week.

Dorsey & Whitney

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