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September 14, 2015

The Chamber asks the FCC to Get Back to the Basics

By Harold Kim
Executive Vice President
U.S. Chamber Institute for Legal Reform

Last week, the U.S Chamber of Commerce filed its challenge against the Federal Communication Commission’s (FCC) declaratory ruling on the Telephone Consumer Protection Act (TCPA) in the U.S. Court of Appeals for the D.C. Circuit. The ruling oversteps the agency’s authority and should be overturned.

In its July ruling, the FCC broadly interpreted the provisions of the TCPA in a way that is contrary to the text of the law and that greatly expands potential liability for businesses. The TCPA was enacted back in the smart phone dark ages—otherwise known as the early 1990’s—and was intended to protect consumers from being swamped with unwanted telemarketing calls. Since then, plaintiffs’ lawyers have attempted to stretch this outdated framework to cover not only abusive telemarketers, but also legitimate communications between businesses and their customers via modern technology.

Businesses turned to the FCC to confirm that the law does not apply to the legitimate communications targeted by the plaintiffs’ bar to foment meritless TCPA litigation. But instead, the FCC has interpreted the TCPA in a far-reaching way that interferes with communications between businesses and consumers.

For example, now if a call is made to a consumer from any device that might be capable in the future of being used for automated sequential number phone calls, the business might be found in violation of the TCPA. The breadth of this ruling is highlighted by the fact that to find an example of a call from a device that would not be subject to the TCPA, the FCC had to rely on a call from antiquated rotary phone. This ruling opens up large companies as well as “mom and pop” businesses to financially devastating lawsuits and legal costs.

Among other things, the Chamber is also contesting the FCC’s arbitrary conclusion that a call to a phone number that has been reassigned could make the caller liable for a TCPA violation, even if the caller has no knowledge of the number being reassigned. The FCC claims this “one call” rule is a “safe harbor,” when in reality it provides no safety at all for businesses intending to call their customers.

The TCPA was not created to police legitimate communications and the FCC has lost sight of why this legislation exists. The Commission’s broad interpretations aren’t protecting consumers, if anything they are making it impossible for businesses to contact their customers without opening themselves up to a lawsuit.

The FCC’s ruling overstepped its authority in creating new and unwarranted liability from outdated TCPA provisions. The Commission needs to get back to the basics.

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