Attorneys Debate Whether TCPA Suits Are Frivolous
The FCC is grouping the dozens of petitions seeking clarification of the Telephone Consumer Protection Act based on the questions they raise, said FCC Consumer and Governmental Affairs Bureau attorney Kristi Lemoine at an FCBA event Monday about a rise in class-action suits spurred by the law.
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The petitions, which panelists said were mostly filed by sides involved in suits over robo calls and junk faxes, seek definition on a number of aspects of the law, Lemoine said at the forum. Attorneys representing plaintiffs and defendants in some of the suits debated at the event whether the suits really seek to protect consumers or are aimed at taking advantage of the law to win damages from companies.
Meanwhile, the Enforcement Bureau released an advisory Tuesday reminding “political campaigns and calling services that there are clear limits on the use of autodialed calls, prerecorded voice calls, and text messages,” and said the agency is “committed to protecting consumers from harassing, intrusive, and unwanted robocalls and texts, including to cell phones, smart phones, and other mobile devices.”
The agency issued a $2.9 million proposed fine in May against Dialing Services (http://fcc.us/1CRtNLP), the advisory said, and the agency “will not hesitate to act to protect consumer privacy and their freedom from the nuisance of unwanted calls.” The rise in lawsuits is due to consumers being so “fed up by telemarketers” and “fed up with privacy intrusions” that they’re willing to be part of class-action suits, said Matthew McCue, a Boston attorney, who represents plaintiffs in some of the suits.
In part, the increase is due to “an explosion of mobile marketing” as cellphones become so ubiquitous that “we are all strapped to our cellphones,” said Loeb & Loeb’s Christine Reilly, who defends companies in some of the suits. Plaintiffs are also “really pushing the envelope” in testing the limits of the law, she said. “They are throwing everything they can at the wall to see what’s gong to stick.” Similar “boilerplate” lawsuits are being filed against different companies, at times failing to accurately change the type of business from one filing to the next -- “just sloppy, sloppy stuff,” she said.
Last year’s FCC order that companies can be held liable for TCPA violations for the actions of a third-party authorized to market for the company provided some clarity, McCue said. Cases based on the actions of a third party are likely to survive a summary judgment, he said. But Reilly said the cases are “fact-intensive” and hinge on such questions as whether the company knew of and approved the marketer’s actions. Several questions remain to be sorted out by the agency and the courts, the panelists said. Among them, the panelists said, is whether a third party that sells phone numbers for marketers to call is liable, and should a company be held liable if it uses a phone that does not have the ability to make robocalls but has “the capacity” to make them as the law says. Frivolous lawsuits have gone beyond what the TCPA intended, said Patton Boggs’ Monica Desai, former chief of the FCC's Consumer and Governmental Affairs Bureau. “From a policy perspective, it’s frustrating,” she said.