March 14, 2017

Petition Before the FCC Would Open Flood Gates For Abusive TCPA Litigation

Plaintiffs’ lawyers and a few enterprising plaintiffs have been taking advantage of the outdated Telephone Consumer Protection Act (TCPA) by filing class action lawsuits against companies large and small for doing such things as sending text messages to their own customers.

Now, a petition to the Federal Communications Commission (FCC) threatens to make the problem even worse. The Cunningham-Moskowitz Petition, filed last month, seeks to do away with long-standing FCC policy which states: “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” Translation: consumers can voluntarily give their phone number to businesses they trust to receive phone calls (including text messages) from those businesses. For example, if you’re a customer of an airline, you may want to receive texts about the status of flights or luggage delivery times.  Or you may have asked a company to alert you when special promotions or discounts become available.

If the FCC adopted the Cunningham-Moskowitz Petition, it would require companies to obtain new and specific written consent for all of its existing customers for all types of communication (informational and otherwise) prior to contacting them, or open them up to an even bigger flood of expensive and abusive TCPA litigation.

The TCPA is a 25-year old law—predating smart phone and the text message—written to protect consumers from unwanted and abusive spam telemarketing calls.  Today, it is being abused by trial lawyers as a tool to sue for big money, and rarely are those suits about spam marketing. Lawsuits against all types of companies are being settled for millions of dollars—from Capitol One, that reached a settlement at an incredible $75 million for transactional calls, to the Los Angeles Lakers who settled for millions for failing to get permission from their fans before sending a “thank you” text related to entertainment during basketball games.

Instead of fixing the problem, this petition language could make it much worse. Which is why it should come as little surprise that both Craig Cunningham and Craig Moskowitz, the petitioners in this case, are well-known TCPA litigants. This is an action that is not being sought in the public interest, but instead in special interests.

The U.S. Chamber of Commerce and the Institute for Legal Reform filed comments urging the FCC to reject the proposals in this petition. Additionally, Congress needs to fix the underlying problem of the TCPA’s over-incentives to bring lawsuits, so that customers remain free of unwanted spam marketing, and business are no longer the target of enterprising plaintiffs’ lawyers.

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