A pair of amicus briefs have been filed in support of the Federal Communications Commission as the agency defends itself in a lawsuit from a number of industry groups, including ACA International. The plaintiffs are seeking to have changes that were to the Telephone Consumer Protection Act last July undone, arguing that the FCC overstepped its authority in making the changes.
The changes include broadening the definition of what constitutes an automated telephone dialing system, or autodialer, establishing a one-call safe harbor for companies trying to contact consumers via their mobile phone, and expanding how consumers can revoke consent from being contacted by companies, including debt collection agencies.
The National Association of Consumer Advocates, the National Consumer Law Center, Consumers Union, and AARP filed a brief last week with the U.S. Court of Appeals for the District of Columbia supporting the FCC’s position. The group pulls no punches in asserting its position:
If these efforts by Petitioners and supporting Intervenors were to be successful, an unprecedented number of robocalls, affecting nearly every consumer in the nation, would be unleashed. Changing the definitions of “autodialer”— referred to by Petitioners and Intervenors as “ATDS”—and “called party” would cause consumers to be flooded with unwanted calls and texts—even for telemarketing and debt collection purposes—without consent and without any way to stop the calls. Allowing these petitions would eviscerate the fundamental purpose of the TCPA.
The group expressed deep concern over keeping the safe harbor provision, which gives companies one phone call – whether the party answers the phone or not – to determine whether the call was made to the right individual. It can be an issue, for example, when mobile phone carriers re-assign phone numbers. It is not hard to imagine why companies, such as debt collectors, are not notified by consumers when they switch mobile phone numbers. The group asserts in its brief that 35% of all placed calls are robocalls. By not having this provision, low-income consumers who use pre-paid wireless phones as their primary line of communication would be forced to pay for calls that were not intended for them, according to the brief.
Not sparing turning over any stone, the group also mentions the threat to public safety caused by people who answer their phones while driving. Unintended robocalls are a death trap because:
so many cannot resist the imperious ring of the wireless telephone … More robocalls will inevitably lead to more distracted drivers and, inescapably, more accidents
Seven different lawsuits are cited as precedent, illustrating not just the volume of calls that some companies can make, but that they often continue after consumers demand for them to stop.
In all of these cases, a business entity set loose an automated system that called a consumer’s cell phone multiple times, even after the consumer’s repeated attempts to stop the calls. In each case, the caller had simply decided that it was more cost-effective to ignore the clearly expressed wishes of these consumers and continue to make these automated calls and texts.
The claim that the changes to the TCPA will result is more lawsuits is attempted to be disproved in the brief, which extrapolates that only eight lawsuits are filed for every 10,000 robocalls made.
Most consumers who receive robocalls do not take the time to complain to a federal agency, and even a tinier percentage actually files a lawsuit. Most contact the caller or give up. Only those who are very frustrated will seek redress with state or federal agencies.
Regardless of the volume of calls, companies should be penalized when making wrong number calls, the groups argue.
It does not matter if the industry does not benefit from wrong number calls—the industry must be incentivized to stop the wrong number calls. The TCPA places the burden of proving consent on the caller. That burden should remain on the caller to ensure the consent remains valid. The experience reflected in the cases shows that, without proper incentives to stop making wrong-number calls, the industry will simply keep calling.
It is by no means a surprise that these groups would side with the FCC and the arguments that they offer really do nothing but re-hash old stereotypes and paint any industry that makes phone calls with a very broad brush.
And, of course, if a business wants an absolute guarantee against TCPA liability, it has the option of simply refraining from making robocalls; it can manually dial instead. Businesses do not have a “right” to make robocalls.
Click here to download a copy of the brief. Separately, the Electronic Privacy Information Center also filed an amicus brief supporting the FCC.