TCPA Overhaul in Crosshairs for Congress in 2017

There’s “enough momentum now,” unlike any time in recent memory, said Dorsey & Whitney attorney Eric Troutman, lead defense counsel in several nationwide TCPA class-action suits. “Both parties have an interest in modernizing this thing. … I really do believe Congress will act -- the question is how and when.”

Lawmakers have differing concerns with TCPA. Democrats tend to focus on the consumer concerns about robocalls, while Republicans emphasize litigation risks, which have caused heavyweight players like the Chamber of Commerce to advocate legislation. Anti-spoofing legislation attracted widespread consensus this Congress and cleared both Commerce committees.

The November elections promise a new administration and a chance for Democrats to retake both the Senate and, less likely but still seen as possible, the House. Lawmakers emphasize bipartisan appetite for legislation regardless of these outcomes.

Priority for New Congress

“It sets the table,” said House Communications Subcommittee ranking member Anna Eshoo, D-Calif. “But there’s work to be done on it.” TCPA overhaul “has to be one of the areas that we deal with” in 2017, she said: “People are up to here. They’re 40,000 feet and climbing. It is the top consumer complaint at the FCC. It used to be volume [from TV ads], and I took care of that one.”

TCPA overhaul is something “that I think we should pursue next year because I think there’s bipartisan interest in trying to modernize the 25-year-old law,” agreed House Communications Subcommittee Chairman Greg Walden, R-Ore. “I thought the hearing was really productive for members on both sides of the aisle. … Nobody wants unwanted robocalls. But there’s a difference between that and an autodial on your iPhone being considered a robocall. Technology just has advanced and gone beyond the law and I think we need to figure out how to bring the law up to date. But it’s got to be done in a bipartisan way. And we will.”

Rep. John Shimkus, R-Ill., competing against Walden for committee leadership (see 1607220053), agreed: “It could be something on the agenda that the next subcommittee chairman of the telecom subcommittee [could] want to move on." He described a recent meeting with an Illinois credit union. “They can fall into this trap of them trying to notify their members of issues,” Shimkus said. “There is a really pro-consumer side to try to ensure you have a system that protects people but there’s also a pro-consumer side that says if the consumer wants a credit union or someone they have a business relationship with to contact them, they shouldn’t be penalized. You know how regulation is -- sometimes you have unintended consequences.”

Whoever wins House Commerce's GOP leadership fight will determine Walden’s Communications Subcommittee successor. Commerce Vice Chairwoman Marsha Blackburn, R-Tenn., is a rumored contender for the top spot but likely could lead on the Communications Subcommittee if that bid falters, industry lobbyists say. The "outdated" TCPA requires more Hill scrutiny, Blackburn told us in a statement, saying it “no longer protects consumers from bad actors while unintended applications of the law often punish legitimate businesses. We should therefore give careful consideration to modernizing the TCPA.” The September hearing's bipartisan overhaul consensus “was encouraging,” Blackburn said.

House Commerce Committee ranking member Frank Pallone, D-N.J., requested the hearing, with Eshoo and Rep. Jan Schakowsky, D-Ill. “Unwanted robocalls are spiking and consumers are fed up,” Pallone said in a statement. “This law is failing and our committee has a responsibility to do something about it. That’s why I joined Ranking Members Schakowsky and Eshoo in calling for a hearing to start the process of rewriting the TCPA, and we will not let up until we find a way to curb these annoying unwanted calls." Eshoo was "very grateful to the majority for at least allowing a hearing," she said. "We weren’t doing anything [before]."

Senate Commerce Committee Chairman John Thune, R-S.D., expects work to continue, said a spokesman. Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, said he’s “happy to support” a stab at TCPA legislation and defers to Sen. Richard Blumenthal, D-Conn., a Commerce member vocal on robocalls. Blumenthal and other Commerce members, including Sens. Ed Markey, D-Mass., Claire McCaskill, D-Mo., and ranking member Bill Nelson, D-Fla., repeatedly weighed in this Congress after a budget law permitted government-sponsored robocalls for debt collection and later, after the FCC’s Broadnet ruling that TCPA restrictions don't apply to the federal government and its contractors.

Some Wary

Not all see promising signs. “We are concerned that many who are calling for modernizing the TCPA are seeking to poke holes in that bulwark, with new exceptions to allow more robocalls,” said Consumers Union Senior Policy Counsel George Slover. “We don't know any consumers who think they aren't getting called enough. … It's too early to predict the outlook for legislation next year. We'd be open to looking at changes that actually strengthen the law; but we'd stand ready to fight efforts to create new loopholes.”

“People across the country are not worried about litigation,” Eshoo said. “That’s not what the thrust of this is. ... The main issue is there are people that have gone around the law that we have and the law that we have was not designed in anticipation of the technologies that we have or the criminals.”

“The primary issue is the abuse of the TCPA with the frivolous lawsuits,” countered class-action attorney Troutman, lamenting “massive penalties” and what he dubbed “greedy” plaintiff lawyers. “Congress has wanted to defer to the expertise of the FCC, but the FCC has been wantonly increasing its power.” He believes a balance can be struck addressing both consumer robocall concerns and industry litigation concerns. He proposed removing private right of action and limiting or capping statutory damages in private suits. The autodialer definition must be clarified, he said, noting his clients “would be fine” if the TCPA prevented them from using predictive dialers without consent. The greatest clarity an overhaul could afford is what equipment the TCPA regulates, he said. Another facet is what he called the wrong number issue, which he said carriers could address through issuing a subscriber database, and revocation of consent. “Hopefully Congress can achieve balance,” Troutman said. “I do think they can live in harmony and find a middle ground.”

Without “decisive” congressional action, “we will see a steady slough of TCPA class actions with increasingly higher settlements,” said Business in the Public Interest Chairman Adonis Hoffman, who has no clients involved in TCPA matters. He recommended a “self-regulatory regime that would be monitored by a credible, third-party, industry watch dog and ultimately backed up either by the FCC, FTC or both in some cases.”

CU's Slover advocated passage of the Robocop Act (S-3026/HR-4932), a Democrat-backed measure compelling FCC regulations involving knowing transmission of inaccurate caller ID information. Sen. Chuck Schumer, D-N.Y., his chamber’s sponsor, is expected to lead Senate Democrats next Congress. The bill, referred to the Commerce committees without action, “would require our phone companies to give consumers practical tools to identify and stop unwanted robocalls,” Slover said. Troutman questioned some House Democrats’ approach: “Their view of modernization of the TCPA was actually an expansionist view.”

The 2016 hearings were a “small step” but Congress needs to “come up with a plan that will be technology neutral ... across all communication sectors,” Eshoo recommended. The year’s action “gives me hope that we will build on that and bring in some real experts on this to help give us direction about how best to shape it,” she said. “We don’t want to get this wrong. We don’t want to raise the ire of the American people because they’re pretty upset.”