Business Interests Press FCC to Narrow TCPA Exposure; Consumer Groups, Plaintiffs Resist

Many urged the FCC to limit business-oriented caller exposure to Telephone Consumer Protection Act liability, after partial court reversal of a 2015 commission decision targeting unwanted robocalls (see 1803160053). Financial and other corporate interests, including some telecom groups, said the commission should narrow its key definition of "automatic telephone dialing systems" (ATDS) subject to TCPA wireless restrictions and give parties more protection when making inadvertent calls to reassigned numbers. Consumer groups, class-action parties and a few others resisted such pleadings, which they said would further open the floodgates to unwanted robocalls. Comments were included in docket 18-152 on a public notice inviting input on the remand and other TCPA interpretations (see 1805150014).

Retailers "have been increasingly subjected to abusive litigation" in recent years, partly due to FCC rulings encouraging class-action lawsuits and discouraging "beneficial communications that consumers desire and expect," said the Retail Industry Leaders Association. The U.S. Chamber Institute for Legal Reform said the U.S. Court of Appeals for the D.C. Circuit gave a road map to restoring "reason" by vacating the ATDS definition as overly expansive and a one-call reassigned-number safe harbor (ACA International v. FCC, No. 15-1211). The institute said the FCC should immediately approve its coalition petition to interpret ATDS "in line with the statute and common sense," "establish appropriate reassigned number safe harbors" so "well-meaning companies can avoid the unfairness of strict liability," "call for an immediate moratorium on reassigned numbers litigation" and provide more clarity on what constitutes consumer revocation of call consent.

Financial entities heavily supported restricting the ATDS definition and caller exposure. "Confusing and at times conflicting interpretations ... have had a chilling effect" on credit union communications with members and other normal business communications Congress didn't intend to restrict, said the Credit Union National Association, which cited an "onslaught" of TCPA litigation. "At a minimum, the Commission should confirm that calls placed with human intervention are not made using an ATDS, and that calls that are not made randomly or sequentially, i.e., calls by creditors to their customers on existing accounts, are not made using an ATDS," said the American Financial Services Association, which like CUNA signed the institute petition. ACA International, the Consumer Bankers Association, Quicken Loans, PRA Group, the National Mortgage Servicing Association, the Electronic Transactions Association, and other credit and collection parties made similar requests.

Narrow the ATDS definition, limit liability for calls to reassigned numbers and clarify revocation consent, asked NCTA. Incompas made similar comments. CTIA said the FCC should find "(1) 'called party' means the caller’s 'intended' or 'expected' recipient of the call; (2) callers can 'reasonably rely' on the 'prior express consent', including by relying on market-based TCPA compliance solutions for reassigned telephone numbers; and (3) callers may provide certain 'clearly defined and easy to use” consent revocation methods to promote consumer-friendly opt-out mechanisms and reduce confusion." Cisco, ADT Security Services, SiriusXM Radio and Tech Freedom sought to curtail TCPA scope, as did healthcare, electric, automobile dealer, restaurant, news, insurance and TCPA defendant groups.

Others opposed the campaign to relax TCPA regulation. If the FCC defines ATDS and a "call" as narrowly as industry wants, "the consequence will be a tsunami of unwanted -- and unstoppable -- calls to our cell phones," said the National Consumer Law Center, joined by the Consumer Federation of America, NAACP, National Association of Consumer Bankruptcy Attorneys, National Legal Aid & Defender Association, Prosperity Now, Public Knowledge, U.S. Public Interest Research Group and over 30 other groups. They urged the FCC to "write definitions that will ensure that the consumer protection law it is charged with implementing is effective in protecting the sanctity of Americans‘ privacy." They said ATDS should be interpreted "broadly" to protect consumers from unwanted calls, "calls to reassigned numbers must be closely limited" and "revocation of consent should be simple and always permitted." Joining were Consumer Action and Consumers Union, also filing separately.

"This industry will do anything and everything they can to completely neuter the TCPA," said a Texas spokesman of Private Citizen. "Their assault on the TCPA began the day the TCPA was enacted and will continue ad infinitum. This war on our privacy will continue until the Supreme Court settles the issue." Class-action parties also resisted a rollback, including attorney Justin Holcombe, plaintiff John Herrick, and the firms of Greenwald Davidson and Kazerouni Law Group.

Don't thwart congressional intent to protect consumer privacy, said Mississippi Attorney General Jim Hood (D): "The callers' 'capacity' to call millions of consumers in a mere minute should be regulated no matter the technology, and the definitions must not be so narrow that unscrupulous callers will be able to evade liability by developing technology that circumvents them." The Electronic Privacy Information Center said the FCC should define a TCPA "called party" as "the number's current subscriber to protect the privacy of consumers with reassigned numbers."

Commenters offered various views on other issues the PN teed up. This included petitions to reconsider a "Broadnet declaratory ruling" -- on treatment of government contractors -- by the NCLC and the Professional Services Council, and a petition to reconsider 2016 federal debt collection rules by Great Lakes Higher Education and others.