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May 22, 2017

Marketing New Communications Software? Get Government’s Permission First.

The Telephone Consumer Protection Act (TCPA) became law a quarter century ago, in part, to protect consumers from unwanted telemarketers. But that old law coupled with today’s new technology has become a recipe for lawsuit disaster, as plaintiffs’ lawyers bring high-dollar litigation against companies of all sizes for doing things such as texting their customers or communicating via a smart phone.

TCPA class action lawsuits are now dominating all case filings, according to a recent report from the law firm Orrick, Herrington and Sutcliffe.

These predatory lawsuits are having a real effect on innovative, new technologies. All About the Message (AATM), a marketing and communications company, recently developed a new direct-to-voicemail message delivery product it hopes to share with the world.

But the company, fearful its business customers may face abusive TCPA lawsuits, filed a petition asking the Federal Communications Commission (FCC) to declare that its new product is not encompassed within the TCPA, arguing it was developed after the legislation was enacted and thus could not have been considered by lawmakers as subject to the law at the time they wrote it.

Most reasonable people would find this a common sense argument. The TCPA was created during a time when smart phones and direct messaging software like AATM’s were non-existent. How could a law created before these things were invented have the intent to regulate such technologies?

The Institute for Legal Reform agrees with this stance, and reiterated that position recently in comments to the FCC, writing “the Commission cannot continue to sweep new technologies into this technologically-archaic statute.”

It is up to Congress, not the FCC, to update the TCPA so that it aligns with modern standards and technologies. Companies like AATM should not have to go through the laborious process of filing a petition to introduce new products because our legal system has not kept up with our nation’s innovation.

Let’s hope the FCC agrees and uses this opportunity to clarify that it will not retrofit the TCPA to our modern tech world. Congress alone has the authority to update laws such as this one. They should do so in a way that both protects consumers from unwanted intrusions and protects businesses from predatory litigation.  

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