The Senate Committee on Commerce, Science, and Transportation considered the Telephone Consumer Protection Act recently at a hearing titled, “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business.”
With testimony from a state Attorney General, the National Consumer Law Center, the American Association of Healthcare Administrative Management and the U.S. Chamber Institute of Legal Reform, lawmakers heard a variety of perspectives on the statute.
In his opening remarks, Committee Chair Sen. John Thune (R-S.D.) suggested the statute could use a tune-up. “As a result of the TCPA, a number of abusive and disruptive telemarketing practices have been significantly reduced or eliminated,” he said. “But, TCPA is also showing its age, and there are opportunities to build on its consumer benefits while also ensuring consumers fully benefit from modern communications.”
Because consumer behavior is far different today than in 1991, “today’s consumer expectations about communications connectivity and the benefits of better contact with their doctors, schools, favorite charities, and—yes—even their lenders would be unrecognizable to Congress 25 years ago,” he said. “The balance forged decades ago may now be missing the mark, and consumers may be missing the benefits of otherwise reasonable and legitimate business practices.”
Sen. Thune also expressed concern that the Federal Communications Commission “actually seems to be creating more imbalances and more uncertainty,” leaving businesses unclear about the definition of an autodialer and what to do if a customer’s number has been reassigned. “TCPA litigation has also become a booming business,” he told attendees of the hearing. “TCPA cases are the second most filed type of case in federal courts, with 3,710 filed last year alone. That represents a 45 percent increase over 2014.”
Ranking Member Sen. Bill Nelson (D-Fla.) took a different approach, by characterizing the TCPA as “one of the preeminent and most loved consumer protection statutes we have.” He suggested that if the law were changed so that consumers received more robocalls, legislators would “get a mobile phone thrown at you.”
“The number of consumer complaints about robocalls continues to increase,” Sen. Nelson said, with hundreds of thousands of complaints per month to the Federal Trade Commission. While he recognized that fraudulent callers are a big part of the problem (and the reason behind legislation he sponsored to combat spoofing), he also took a pro-consumer stance. “[O]utside this hearing room, outside the corporate boardrooms, outside the offices of defense counsel or debt collectors, the idea of allowing greater access for robocalls to consumers’ cell phones without their consent is an idea that is dead on arrival with the American people.”
Other witnesses at the hearing presented a similar divergence of views. Indiana Attorney General Greg Zoeller spoke about the “long, tireless battle” to protect consumers from unwanted calls, which are the most common complaint received by his office. He also decried the new TCPA amendment permitting debt collection robocalls to cell phones if the debt is owned or guaranteed by the United States.
“By carving out this exception, Congress is legitimizing robocalls and allowing them a free pass to harass people,” AG Zoeller said. “Unwanted calls are a huge annoyance to our citizens. It’s frustrating when the federal government weakens state efforts aimed at protecting and servicing our citizens.”
Alternatively, a representative on behalf of the U.S. Chamber Institute for Legal Reform and the U.S. Chamber of Commerce discussed the impact of the TCPA on businesses both big and small, “in a manner never intended by the drafters” of the statute, portions of which are “horribly outdated.”
“Unfortunately, it is American businesses, and not harassing spam telemarketers, who are the targets for these suits,” she testified. “[T]rial lawyers have found legitimate, domestic businesses a much more profitable target. Indeed, businesses reaching out in good faith to customer-provided telephone numbers are now the most common target of TCPA litigation.”
To watch a video of the hearing and read the prepared testimony of participants, click here.
Why it matters: The disparity of views reflected at the hearing may prove challenging to any update of the 25-year-old statute. Committee Chair Sen. Thune recognized that the TCPA should reflect the interests of both businesses and consumers, but expressed concern that the statute no longer does so. When Congress enacted the TCPA, it “expressly sought a balanced approach,” he said. “Ultimately, finding the right balance is essential to protecting the privacy of consumers while making sure they have reasonable access to the information they want and need, and making sure good faith business actors can reasonably assess the cost of doing business.”