The Telephone Consumer Protection Act is “outmoded” and “barely applicable” to today’s consumer, according to a whitepaper released today by ACA International. The whitepaper goes on to conclude that both businesses and consumers would benefit from an “overall modernization” of the law. In fact, the whitepaper indirectly argues, about the only people who would not benefit are plaintiffs’ attorneys.
The growth of mobile communication, including phones and text messaging, coupled with the punitive and statutory damages for violations of the act make it unfair to both consumers. Class-action attorneys netted an average of $2.4 million, while class-action participants — individuals — earned $4.12 per TCPA settlement, according to the whitepaper.
Rather than improving the consumer experience, the TCPA has come to act as a barrier to communication between businesses and their customers.
While falling short of making actual recommendations of its own as to how the TCPA may be modernized, the whitepaper does offer suggestions from a Monica Desai, a lawyer with Squire Patton Boggs who recently testified before Congress. Among her recommendations were:
- Congress should mandate a reassigned number database
- Create a safe harbor for businesses that accidentally call reassigned numbers after checking them against this database
- Confirm that the statutory defense for “prior express consent of the called party” was not intended to be meaningless
- Clarify that the definition of an automatic telephone dialing system was never meant to include any and every kind of modern dialing technology
Along with the noted discrepancies in fees awarded to attorneys and individuals in TCPA class-action lawsuits, the whitepaper also notes that TCPA litigation has increased 948% in the past five years.
As evidenced by an understanding of technology frozen in the past and a propensity to be abused by unscrupulous attorneys, the TCPA is in desperate need of reform.
The whitepaper does a comprehensive job of laying out the issues and problems with the TCPA, but falls short in offering suggestions and alternatives that would further the debate about how the law can be modernized.