Consumer Replies Oppose Easing TCPA Regulation; Businesses Seek Less Robocall Liability
Consumer advocates and individuals pushed back against FCC relaxation of Telephone Consumer Protection Act enforcement they said would open up a bigger flood of unwanted robocalls. Corporate interests continued to urge limiting FCC TCPA reach, which they said sparked an onslaught of class-action lawsuits against companies doing legitimate business calling. At least three dozen substantive replies were filed, in docket 18-152, to initial comments (see 1806140043) on a public notice on TCPA issues after a partial court reversal in ACA International v. FCC (see 1805150014 and 1803160053).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
More than 300,000 "express" individual comments were filed, mostly June 18-21 (here, here), with over 18,000 posted Friday. Virtually all the ones we spot-checked were form letters seeking "the strongest possible consumer protections against unwanted robocalls," including defining autodialer broadly, limiting robocalls to reassigned numbers and regulating government contractor robocalls. Consumers Union said 36,000 individuals it contacted reportedly filed comments urging "the strongest possible protections," though it noted the FCC said the 300,000 filings "includes an undetermined number of duplicate submissions." CU didn't comment Friday.
The National Consumer Law Center urged "protecting the sanctity of Americans' privacy" and opposed relaxing TCPA restrictions on robocalls to wireless phones. "If the FCC issues definitions of 'automated telephone dialing system' [ATDS] and 'call' that are as narrow as the calling industry urges, no currently operating systems will be covered," said NCLC: "All automated calls using a live caller, as well as all automated texts, will no longer be subject to [TCPA] consumer protections. ... Callers and texters would no longer be required to have consent before making automated calls and texts to cell phones."
The FCC has "authority and even the mandate to define ATDS to cover most of the automated systems out there," NCLC Senior Counsel Margot Saunders told us. "If they implement a definition that doesn’t cover many of the systems that are actually being used, then they are ducking the responsibility that Congress gave them.”
ATDS should be defined to prevent "technical workarounds," people with reassigned numbers should be protected from unwanted robocalls and callers should facilitate revocation of consent, said the Electronic Privacy Information Center. "Technology used for these unsolicited communications does not change the adverse effects they impose on the recipients," said the National Association of State Utility Consumer Advocates. NASUCA backed an "inclusive" ATDS definition, "carving out the ordinary use of smartphones, which would continue to provide consumer protections" while complying with ACA.
More class-action attorneys filed replies seeking continued safeguards. Automated calls and texts under industry's proposed ATDS definition would be "ungoverned and unstoppable," said attorney Hassan Zavareei of Tycko & Zavareei: "This would also mean that no texts would be covered by the TCPA. ... Americans would be bombarded with unwanted text messages and unwanted call volume would only increase."
Financial groups and other business entities kept up their push for tightening the ATDS definition and other actions to reduce litigation. "Confusion about what actions violate the TCPA has fostered abusive litigation that thwarts legitimate business efforts to provide expected and desired communications to consumers," said the U.S. Chamber Institute for Legal Reform and U.S. Chamber Technology Center.
ATDS should be defined "as equipment that has the present capability to generate random or sequential numbers and to dial those numbers without human intervention," said the Credit Union National Association. "The business community also agrees that the 'called party' should be defined as the intended recipient and that callers may reasonably rely on the prior consent of the person that provided the number called, absent actual knowledge of reassignment. Strong support exists as well for a safe harbor for companies utilizing compliance solutions, including using a comprehensive reassigned number database should one be adopted."
NCLC proposes "misguided 'solutions' to outdated regulations and onerous" interpretations that would "punish those making highly legal and regulated calls, and attempt to lump these types of communications in with illegal robocalls and telemarketing calls, said ACA, the association for credit and collection professionals. "The complexity and breadth of their proposed TCPA coverage would harm small businesses and small community financial institutions in a disproportional way."
CTIA urged "a sequenced approach to resolve the outstanding reassigned numbers issues." Reduce robocalls "to reassigned numbers and provide relief to good-faith callers and consumers by: (1) revisiting the 2015 TCPA Order’s interpretation of 'called party' and clarifying that the term means 'intended' or 'expected recipient'; and (2) adopting one or more safe harbors," CTIA said.