How can the Telephone Consumer Protection Act be updated to reflect changes in technology while still protecting consumers from unwanted calls?

At a hearing titled “Modernizing the Telephone Consumer Protection Act,” the House Energy and Commerce Subcommittee on Communications and Technology discussed this problem.

Subcommittee Chair Rep. Greg Walden (R-Ore.) noted in his opening remarks that “it is increasingly clear that the law is outdated and in many cases, counterproductive. It’s time to modernize the current law to reflect the incredible technological changes in our culture.”

The four witnesses who testified during the hearing backed up this characterization of the TCPA.

Michelle Turano of WellCare Health Plans Inc. told the legislators that concerns about the TCPA have caused her organization—which provides managed healthcare plans—not to send health-related reminders to patients on their cellphones, despite research that telephonic outreach via automated technology has been shown to be successful in encouraging consumers to receive important physician-recommended screenings.

Turano said businesses need greater clarity in TCPA application as well as harmonization between the statute and the Health Insurance Portability and Accountability Act (HIPAA).

Similarly, Shaun W. Mock from Snapping Shoals Electric Membership Corporation testified that his nonprofit electric co-op ceased providing low balance reminder calls to customers after the group was hit with a class action lawsuit. “[T]he strict liability tenets found within the statute leave no room for reasonable application of the law that would reflect the modernization of telecommunications and balance the member-benefit of phone notifications with cooperative best practices,” he said.

Testimony also included statistics demonstrating that, between 2010 and 2015, the number of TCPA lawsuits jumped 940 percent with an average payout for plaintiffs’ attorneys of $2.4 million—numbers that Rep. Marsha Blackburn (R-Tenn.) said “[tell] us that something is terribly wrong with this process.”

To view the hearing and read the witness statements, click here.

Why it matters: In a background memo, the Subcommittee said the TCPA fails consumers on two fronts: “it fails to stop the flow of unwanted calls, and it discourages American companies from providing information to their customers through calls and texts. As a result, because the law has failed to keep pace with technology and society, companies are faced with having to choose between providing the services and notices consumers want with the threat of litigation.” The lawmakers seemed to agree that issues such as the definition of an autodialer and the revocation of consumer consent need to be addressed and updated, but much work remains to be done.