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Failing To Protect Consumers Under The Telephone Consumer Protection Act

Harold Furchtgott-Roth

The Federal Communications Commission (FCC) recently released a declaratory ruling and order in response to more than 20 petitions under the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA is supposed to protect consumers from unwanted commercial calls, but it is not supposed to block that consumers may want. The FCC’s declaratory ruling decision is incomplete and will not provide the regulatory clarity that would help both American consumers and businesses. Here’s why.

Although resolving more than 20 petitions may sound like a large accomplishment, they represent but 1% of the more than 2,000 lawsuits pending under TCPA around America. If the FCC were to choose to resolve 1% of pending litigation matters at a time, few disputes would ever be resolved.

But even by addressing certain petitions in a declaratory ruling, the FCC does not resolve any of the court disputes. The court disputes depend on many factors not necessarily clarified by the FCC declaratory rulings, even for those few that had parallel petitions to the FCC. Courts can employ discovery to obtain information that was not available in the FCC petitions. And for the 2,000 or more cases without an FCC petition, the FCC’s declaratory ruling may provide little or no new information.

The actual legal boundaries between lawful and unlawful calls and calling practices under the TCPA are blurred. Under the TCPA, many consumers complain to the FCC and the Federal Trade Commission (FTC). The FCC receives thousands of complaints each month; the FTC receives tens of thousands of complaints each month. The Commission’s declaratory ruling chronicles the increase in both complaints and litigation. Getting clearer TCPA rules would seem to be in everyone’s interest.

But despite increases in both complaints and litigation, the FCC did not initiate a rulemaking to update its TCPA rules, last modified in 2012. Rather than adopt new rules to reflect the most recent changes in technology, both good and bad, the Commission chose instead to issue opinions for more than 20 petitions on a case-by-case basis. Advocates in more than 2,000 other cases, on both sides, will no doubt argue that the case-by-case approach does not address the specific factors present in a specific case in a specific court. Moreover, the case-by-case approach does not address current and future technologies, both good and bad, that may used to communicate with consumers.

A far more effective approach would have been for the Commission to include a rulemaking to adopt new rules going forward that would provide a bright-line test for business communications with consumers. One type of communication is clearly permissible; another type is doubtful. Without such a rulemaking, all businesses and all consumers are left in the current worst of all worlds—a cloud of doubt hangs over a wide range of commonly used business communications practices.

Congress itself may some day need to address TCPA, which has not been updated since 2010. The majority of Americans today either had not been born or had not reached adulthood by 1991 when the original TCPA was written. In those pre-Internet, pre-wireless days, Americans communicated by landline telephones and large contraptions called facsimiles or fax machines. Congress passed the TCPA to stop unsolicited faxes and unsolicited calls by “automated telephone equipment.” In those simpler times, automated telephone equipment were costly devices well beyond the means and interest of ordinary Americans. The FCC was left to write rules to implement the TCPA.

The FCC’s interpretation of TCPA falls short in its appreciation of the dramatic changes in technology over the past quarter century. Under the TCPA, an “automatic telephone dialing system” is a source of potential evil in need of regulation. Under the FCCs interpretation, smartphones owned by the vast majority of Americans may one day be such an evil device. It is difficult to read the TCPA and see “automatic telephone dialing systems” as ubiquitously found in the hand of every adult American.

The FCC was also unhelpful with other terms under the TCPA. The FCC could have clarified in the Internet age what constitutes a “call,” what constitutes a terminated call, what constitutes a misdialed number, what constitutes “consent” to be called, what constitutes a number that is recycled, and many other terms of art. Many were not addressed, and those that were addressed by the Commission in its case-by-case approach seem more appropriate in 1991 than in 2015.

Although the Commission wrote no new rules, the pattern and logic of its ruling would scare reasonable commercial companies. Contacting their customers, it turns out, may be illegal. Even elected government office holders who contract with polling companies to disseminate or collect information are at risk of violating the TCPA. Rather than create bright-line tests distinguishing between lawful and unlawful conduct, the FCC has left in place an uncertain boundary in which practically any call or text may be misconstrued as unlawful. Even an ordinary American seeking to place a call with a cell phone to a friend runs the risk of possibly being considered to have violated the TCPA by dialing an erroneous number without “consent” from “automated telephone equipment.”

The harm from vague and ambiguous TCPA rules is not merely felt by current consumers and current businesses, but by innovative companies, both in business today and those that may never develop as a result of TCPA. Consider Twitter that did not exist a few years ago, much less in 1991. Twitter observes: “In truth, the only way that Twitter can realistically avoid making ‘calls’ to recycled cell phone numbers is simply to stop sending texts altogether.”

That is, to comply with a twisted interpretation of TCPA, Twitter would have to stop providing certain services altogether. That was not the understanding of Twitter when it was founded or when millions of Americans signed up for the service. Twitter is not alone. Countless other firms face a similar fate of simply having to end services to comply with twisted and wrong-headed interpretations of TCPA. And other innovative companies simply will not come into existence.

Many freedom-loving individuals around the world communicate and organize protests via Twitter. Repressive regimes unsuccessfully threaten to block Twitter. Where those repressive regimes have failed, our government may have inadvertently succeeded. The way to shut down Twitter is not with thuggish police but with a misinterpreted TCPA. Imagine that.

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