We can now count an FCC Commissioner among those imploring the agency to act on the growing number of pending petitions asking for much needed clarification of regulations promulgated under the Telephone Consumer Protection Act (TCPA). On April 1, 2015, in his remarks before the Association of National Advertisers, FCC Commissioner Michael O’Rielly urged the agency to address a backlog of petitions requesting clarification of its TCPA regulations and urged the FCC to take action. See Sutherland Legal Alert Ringing in the New Year: TCPA Hot Issues for 2015 (discussing whether 2015 will be the year the FCC provides clarity on a host of TCPA issues).
Commissioner O’Rielly noted that the pending petitions request the FCC’s clarification on key issues such as the definition of autodialer and liability for calls and texts sent to reassigned cell phone numbers. According to Commissioner O’Rielly, the lack of clarity and increased court filings have “broadened the scope of the TCPA,” which in turn has increased TCPA litigation risks for companies. As a result of the uncertainty, Commissioner O’Rielly noted that businesses avoid contacting their existing customers or clients, even if the purpose of the call could help the customer. In acknowledging the concerns of consumers, Commissioner O’Rielly explained that providing much needed guidance would not weaken the TCPA and that any clarifications would address “timely and relevant communications.” The Commissioner emphasized that the TCPA is impacting all sectors of the economy and concluded by expressing, “[w]e can’t paint all legitimate companies with the brush that every call from a private company is a form of harassment. It is time for the FCC to act to provide clear rules of the road that will benefit everyone, and that means acting on TCPA petitions before us.”
On the same day, the latest in a seemingly endless stream of TCPA class actions was filed against PVH Corporation, better known as Tommy Hilfiger, seeking millions in damages. The complaint alleges that the company violated the TCPA by sending thousands of unauthorized text messages using an autodialer to the plaintiff and potential class members “without obtaining prior express consent as required by the TCPA.” The plaintiff’s allegation comes at a time when there are more than a half-dozen petitions before the FCC seeking clarification on the definition of an autodialer. Clarification is necessary given that the TCPA is essentially a strict liability statute (damages per violation are $500, $1500 if willful), and the top four TCPA settlements in 2014, combined, totaled in excess of $175 million.
The continuing stream of TCPA class actions affects virtually every market segment, and Commissioner O’Rielly’s remarks highlight the urgent need for the FCC to act on the backlog of TCPA petitions seeking clarification.