House Holds Hearing on Future of TCPA

The House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing yesterday on “Lawsuit Abuse and the Telephone Consumer Protection Act.”

A panel of four witnesses, including a former chief of staff and senior advisor at the Federal Communications Commission, participated in the hearing.

Referring to the law as “Total Cash for Plaintiffs’ Attorneys,” Adonis Hoffman — the former FCC official and now a consultant and adjunct professor at Georgetown, said that the proliferation of lawsuits that have been filed against companies was not what Congress intended when it enacted the law.

As enforced today, the TCPA serves to drive an unnecessary wedge between corporations and the people they serve. None of the companies which have been subjected to large class action settlements are bad companies. A close look at the records in many of these cases shows that they want to reach their customers and comply with the law. It is not an either – or choice. But the current interpretation of the statute has made this basic business determination a Hobbesian choice. This was not what Congress intended when it reached a compromise with consumer activists to shield people from unwanted telemarketing calls.

But, at the same time, Hassan Zavareei, a plaintiffs’ attorney, said that consumers are not “clamoring” for Congress to make it “easier for businesses to clog their phones with text messages and robocalls.”

Consumer advocates are using the same argument that the collections industry is using, in saying that the percentage of lawsuits that are filed is a drop in the bucket compared with the total number of robocalls that are made every year. Industry experts point to the overall number of collection interactions and how the number of complaints that are made represent a very small portion of those interactions.

In fact, Zavareei argued, Congress should bolster the consumer protections in the TCPA, not weaken them. Congress should clarify that “express consent” is not given just by handing a business a phone number, he testified. As well, Congress should clarify the “make” and “initiate” language in the TCPA to make it clear that any company is liable, even if it is using another company to actually make the phone calls.

Becca Wahlquist, a lawyer representing the U.S. Chamber of Commerce testified that the TCPA creates “perverse” incentives for consumers to invite robocalls and then sue the companies making them.

Wahlquist noted an anecdote about a man who bought the phone number 619-999-9999 and used that number to file more than 600 lawsuits against companies that called that number (autodialer platforms will often require a beginning number and an ending number in the sequence of calls to be dialed and companies would use 999-9999 as the last number, thinking that nobody owned it). He then leased that number to a friend who paid commissions on lawsuits he filed for receiving calls on that number.

The TCPA was designed to protect privacy and to stop invasive and persistent telemarketing, primarily of the “cold call” kind that ensues when telemarketers use dialing technology to randomly or sequentially dial numbers. It was not designed to subject companies to claims regarding “autodialed” calls when they reach out to targeted, segmented lists of their own customers who have a common need for information using the telephone numbers (including cellular phone numbers) provided by those customers. It was not intended to apply to text messages, and it was not designed to cover collections calls, which have independent sets of rules that apply to ensure that those calls are not abusive or overly intrusive. But so long as the TCPA continues expanding, unchecked by Congress, federal courts will continue to have their case calendars fill up with TCPA cases that are not about actual injury or harm, but uncapped statutory damages.



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