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TCPA Reform on Table at Senate Hearing



By Michelle Amodio, TMCnet Contributor
May 20, 2016


While the Telephone Consumer Protection Act (TCPA) has been around since 1991, reform of the law was discussed this week at a U.S. Senate Committee hearing to raise awareness about how businesses have been abusing it.

“This hearing is going be in front of the Senate Commerce Committee, which I think is a very appropriate place to get some awareness going about what the TCPA is doing to American businesses,” said Becca Wahlquist, an attorney for Snell & Wilmer, as reported in the Palmetto Business Daily. “We are not going in with any specific recommendations or not to talk about a piece of legislation that has already been put together or anything.”



Last July, the FCC (News - Alert) issued a new Declaratory Ruling in response to 21 petitions filed seeking clarification of their 2012 prior-express-written-consent rule, which basically prohibits the use of an automatic telephone dialing system (ATDS) to call or text a mobile phone for informational purposes without the prior express consent of the recipient. To make matters more frustrating, the ruling held businesses responsible for calls made to numbers reassigned to another person without the business’ knowledge.

The TCPA litigations have been plenty over the years, but lack of knowledge has led to businesses being unaware of statutes until it is too late, and lawsuits have already been placed in motion.  Reform is necessary so that businesses can use modern technology to reach customers in a way they wish to be contacted.

Wahlquist said that lack of clarity in the TCPA has led to thousands of frivolous TCPA lawsuits by trial lawyers who care “less about protecting consumers and more about driving a multi-million dollar industry.”

During the hearing, Indiana Attorney General Greg Zoeller testified that unwanted and automated calls account for the majority of consumer complaints his office receives. However, Zoeller acknowledged the majority of these calls originated overseas and did not come from the businesses or industries represented at the hearing.

Zoeller argued against this in his testimony and insisted that a nationwide ban on robocalls to cellphones needs to remain intact.

“By carving out this exception, Congress has legitimized robocalls and opened citizens up to a barrage of unwanted or misplaced calls,” he said in the release. “Debt collection robocalls are aggressive, relentless and often inaccurate.”

There have been many cases that have been tried in court dealing with consumer privacy as it relates to TCPA violations. In 2013, the case of Nelson v. Santander said that a debt buyer called the case’s Plaintiff on a mobile phone more than 1000 times. The Defendant raised several defenses, including the defense that some of the calls were made in dialer preview mode. The Court maintained that, because the calls to the Plaintiff were made through the dialer, the Defendant violated the TCPA.

It is obvious that the TCPA needs some amending, as technology has come a long way since 1991. Recent cases have led to the FCC going back to the drawing board to better define some of the misunderstood rulings under its jurisdiction. Of note are cases that deal with predictive dialing and consent from recipients, but now that weaker rules are being considered, it’s a wonder what will happen to the already-existing gray areas.

The confusion will likely linger a bit longer, but for now it’s a question of what move the FCC will make in terms of the rule changes.


 

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