Federal Communications Commission Chairman Ajit Pai appeared recently before the Senate Committee on Commerce, Science and Transportation to discuss activities at the commission. As expected, public safety initiatives were on the agenda, as well as 5G innovation and increasing accessibility for all. However, one of the most important items discussed was reform to the Telephone Consumer Protection Act (TCPA), which affects the ability of thousands of businesses to communicate necessary information to consumers on their cell phones.
Congress created the TCPA in 1991 as a response to consumer outrage over increased, often scam telemarketing calls that had a way of always landing at dinnertime. But today, many of the bill’s provisions are vague and outdated, and fail to reflect developments in modern communication. FCC interpretations of the TCPA have also gone far beyond the intent of Congress to stymie abusive telemarketing and illegal scam calls, and as the D.C. Circuit Court recently recognized, have had an “eye-popping sweep” of all kinds of legitimate communication.
This confusion, coupled with the draconian liability associated with the TCPA, has unfairly punished legitimate businesses seeking to engage in critical communications with customers and employees, while bad actors continue to skirt laws and regulations, harass or scam consumers.
Over the years members of Congress, the FCC, courts and other regulatory agencies have acknowledged the need to provide clarity for TCPA compliance, but all have fallen short in their attempts to do so. Now, Pai has relaunched the FCC’s effort to address bad actors and create the best possible environment for consumers. In particular, the FCC is turning its attention to illegal and fraudulent robocalls.
This summer, it levied the largest fine ever for this type of illegal behavior against a Florida resident who made 90 million illegally spoofed robocalls. This activity is encouraging, but more can — and should — be done to address issues with TCPA and to draw greater distinctions between fraudulent actors and much-needed and sought legitimate business communications.
As Senate Commerce Committee members noted in their recent letter to Pai, updates to TCPA are desperately needed so that “legitimate businesses (can) stay in communication with consumers in a timely and effective manner.”
Similarly, the Small Business Administration Office of Advocacy noted, “In an environment where 50 (percent) to 70 (percent) of a business’ customers might only be reachable by mobile phone, it is important that the FCC move quickly to establish clear guidance on small-business compliance without depriving customers of required or desired communications.”
Even the Bureau of Consumer Financial Protection recently recognized in a letter to the FCC that “consumers benefit from communications with consumer financial products providers in many contexts.”
Currently, because of such onerous standards in how businesses can comply, consumers are being robbed of all kinds of vital information, such as calls from their medical providers, an alert that a package is at their front door, or even that their credit card has been breached or stolen.
While we are grateful that Pai discussed this issue in the recent hearing, including outlining the FCC’s “two-track approach” to regulation and enforcement in the space, the FCC needs to continue to focus on providing clarity to how these legitimate businesses can communicate with their own customers and other consumers. This clarification should provide concise rules for the use of innovative technologies to connect with consumers on their cell phone and via text message, which overwhelmingly is their preferred method of receiving information.
The FCC also should provide an appropriately tailored interpretation of what is considered an Automatic Telephone Dialing System, with the clarification that not all predicative dialers are ATDS. They should focus on clarifying that under TCPA rules, capacity means present ability, and explain that when human intervention is required for a call, that call is not made using an ATDS.
Furthermore, the FCC must delineate the clear boundaries between harmful, ineffective and unreasonable illegal robocalling, and those legitimate and responsible businesses that use new technologies to improve the lives of Americans every day by keeping them informed about events that affect their everyday lives. Schools, doctor’s offices, pharmacies and financial institutions are just a selection of the industries relying on the ability to communicate with consumers on their cell phones, but they are limited by vague and outdated interpretations of TCPA statutes.
It has long been time that TCPA reform was given adequate attention and modernization was discussed in the halls of Congress and throughout Washington, and we are encouraged by the discussion of this critical topic. Keeping TCPA stagnant will harm American families that need to be kept informed efficiently and conveniently throughout their busy lives, while doing nothing to eliminate the bad actors that continue to harm American consumers through illegal practices that are abusive, opaque and harmful to our nation’s overall wellbeing and productivity.
We urge the committee to take up this issue in future hearings, as well, and Chairman Pai and the FCC to continue with swift action on reform.
