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September 28, 2016

TCPA reform: Congress asks, and we answer.

Last week, Representative Marsha Blackburn, Vice Chairman of the House Energy and Commerce Committee, asked panelists at a subcommittee hearing on modernizing the Telephone Consumer Protection Act (TCPA) to submit suggestions for reforming the outdated TCPA. 

The act was written back when all households had a landline and well before smart phones were invented.  Instead of protecting consumers from telemarketers as was intended, the TCPA is being used by plaintiffs’ lawyers to bring frivolous lawsuits against businesses for communicating with their customers.

To give Congress a hand, we came up with a list of ways the TCPA can be modernized. These changes would help protect American companies – both large and small – from expensive and damaging litigation abuse. 

  • Bad Actors:  Reforms to the act should tackle the actual bad actors (i.e., fraudulent calls from “Rachel from Cardmember Services”), instead of companies trying to contact their consumers for legitimate business purposes.
  • Reassigned Number:  Businesses should not be punished with lawsuits when they, in good faith, call a phone number that has been reassigned to another party unless and until the recipient informs them that the number is wrong and the business has time to implement that change.  In particular, an affirmative defense similar to that in the Do Not Call section of the TCPA would tackle this issue.
  • Capacity:  Under the TCPA, businesses are liable for calls made from autodialers or any device capable in the future of being used as an autodialer.  Under this definition, even a smartphone could be considered a prohibited device. The statute language should be updated to only apply to devices that have the present capacity to automatically dial telephone calls. 
  • Revocation:  If a consumer that has provided a telephone number to a company no longer wishes to be called at that number, there should be a set process (like with the Fair Debt Collection Practices Act) on how the business should be told of the revocation, and time to implement that change.
  • Statutory Damages Limits:  Like every other federal statute providing statutory damages and a private right of action to consumers to seek those damages, the TCPA should have a cap on the amount of individual and class action damages that can be sought, so plaintiffs’ lawyers do not look at the act like a cash cow.
  • Statute of Limitations: The TCPA contains no statute of limitations, and so has fallen into the four-year default.  Class actions reach staggering amounts of damages because class plaintiffs seek four years’ worth of calling data and liability.  The TCPA’s time to bring suit should be reasonably limited, as is the case with the other federal statutes providing private rights of action for statutory damages.
  • Vicarious Liability:  The Federal Communications Commission has interpreted the TCPA to allow “on behalf of” liability for prerecorded/autodialed calls, something not specifically provided for in the statute. The TCPA should be revised to define any such vicarious liability so that it would exist only against the appropriate entities—those persons who place the calls, or who retain a telemarketer to place calls, or who authorize an agent to place calls on their behalf.

The hearing last week was an important first step by the committee in recognizing the language of the TCPA has not kept pace with technology.   We hope and urge the House Energy and Commerce Committee to continue with the momentum and bring this 20th century statute in line with 21st century challenges. 

 

 

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