Fighting lawsuits alleging violations of the Telephone Consumer Protection Act continues to be an uphill climb, even though the total number of lawsuits is declining, said a panel of experts who spoke on a webinar on the topic last week.
The webinar, which was sponsored by TCN, aimed to help collection agencies understand how to comply with the TCPA in their geographic footprint, given the varying rulings that courts have issued since the March ruling in ACA International v. Federal Communications Commission. The ruling, while considered a win for the industry, has created confusion among the District and Appellate courts across the country as judges seek to determine what the law of the land is now that much of the FCC’s 2015 Declaratory Order was invalidated in the ACA decision. A number of courts, for example, have said that previous orders issued by the FCC, in 2003 and 2008, are what should be used to determine compliance with the TCPA, such as what defines an automated telephone dialing system. Other courts have ruled that they must look to the statutory definition from when the TCPA was enacted in 1991. The different rulings can make it hard for a collection agency to understand what they can and can not do as the FCC works to propose a new rule.
The panelists for the webinar were:
- Shelly Gensmer, Vice President of Legal and Compliance, ERC
- David Kaminski, Partner, Carlson & Messer
- Don Maurice, Principal, Maurice Wutscher
At the end of the day, in the wake of ACA v. FCC, “more courts are leaning toward getting it right,” Gensmer said during the webinar. “They are tired of plaintiff’s attorneys trying to mold the law.”
Maurice and Kaminski both pointed to a pending decision in the Court of Appeals for the Ninth Circuit — Marks v. Crunch San Diego — which could issue some clarity to how an ATDS should be defined. The ruling is likely to be significant because the Ninth Circuit includes California and will provide a much-needed definition for collection agencies moving forward.
Collection agencies are dialing back in their settlement offers following the decision in ACA v. FCC, Maurice said.
“There were sizable offers that were made pre-ACA that are not being put on the table now,” he said.
Even though some rulings have gone against what the ARM industry would like to see, of the 17 rulings that have been issued since ACA v. FCC, there have been “some very good decisions that have helped us,” Kaminski said. “The tide is turning. There are certain jurisdictions that are looking at this differently.”
