FCC Should Rethink Broader Approach to TCPA, Pai, O'Rielly Say
The FCC is seeking comment on a narrow aspect of the Telephone Consumer Protection Act, providing an exception for companies hired by the federal government to collect funds owed the government. The NPRM moves the FCC toward implementing a provision in last year’s budget deal, the Bipartisan Budget Act, providing a special exemption for federal debt collectors. Commissioners Mike O’Rielly and Ajit Pai objected, saying the federal pursuit of special treatment shows broader problems with the TCPA. Both commissioners also raised red flags last summer when the FCC approved an order and declaratory ruling on the TCPA (see 1506180046).
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“In taking this first step toward implementing these requirements, as Congress instructed, we recognize and seek to balance the importance of collecting debt owed to the United States and the consumer protections inherent in the TCPA,” the FCC said in the NPRM. Comments are due June 6, replies June 21. TCPA complaints remain “as a whole … the largest category of informal complaints the Commission receives,” the FCC said. For FY2014 alone the government faced $139.3 billion in delinquent debts.
Last year the FCC “twisted the law’s words to target entirely legitimate, live, non-telemarketing calls between businesses and their customers,” but it turns out that also caused problems for the government, Pai said in a dissent to the NPRM. The Obama administration could have sought the overturn of the FCC order. Instead, it focused just on the rules as they apply to federal debt collection, he said.
“Just think about what that means,” Pai said. “The federal government has deliberately allowed federal debt collectors to robocall consumers at their homes and on their cellphones without their prior express consent. As it is, Americans hate picking up the phone to hear the tinny sound of a robotic voice. I tend to doubt their irritation will lessen when they learn that voice is calling to collect cash on behalf of the government.”
O’Rielly, in a partial dissent to the NPRM, said last year’s TCPA order was “nothing short of a disaster.” The FCC’s reading of Congress’ language in the balanced budget act is as narrow as possible and the agency should have moved toward a broader exemption, he said. “My vote to approve in part is on the narrowest possible grounds: solely to initiate the rulemaking required by Congress,” he said. “In all other respects, I strongly dissent. The Commission should be embarrassed to issue an NPRM that flies in the face of Congress’s clear instructions, and I am concerned that it will further damage the agency’s credibility, if that is even possible.”
Eric Troutman, who specializes in TCPA defense cases at law firm Dorsey & Whitney, said the NPRM is “extraordinary in a number of respects,” including that it asks more than 25 separate questions on “how it should implement a one-sentence amendment." That “underscores the deeply ambiguous nature of the TCPA and the thicket of issues that excessive extra-statutory regulation by the Commission has created," Troutman said in an email. The FCC also proposes to extend the exemption for “collection” calls to “servicing” calls made by mortgage services, he said. “This proposal, if adopted, would greatly expand the impact of the amendment and allow calls to be made, without consent, on most federally backed mortgages," he said.
The FCC should move with care in allowing additional exceptions to the TCPA, Consumers Union said in a news release. “Americans are already regularly harassed by robocalls that can ring day and night,” said Maureen Mahoney, policy analyst at the group. “Congress never should have weakened current law by opening the door to more robocalls on cellphones. The FCC’s proposed rule includes some important limits that will help keep this new loophole from leading to more robocall harassment. We encourage the Commissioners to adopt the strongest protections possible.”