Debt Collectors, Business seek to rob TCPA of consumer protection thru money, influence, and lobbying the FCC. Sadly, the FCC is listening.
Michael O’Reilly, a commissioner at the Federal Communications Commission, caught the attention of consumer advocates, businesses, debt collectors, legal professionals, and others when he wrote in a March 25 blog that the Telephone Consumer Protection Act needs clarification.
TCPA lawsuits have increased more than 30 percent in the last year, he said, while several dozen petitions are being submitted to the Commission in search of clarification.
O’Reilly also wrote that the FCC should take a hard look at its own precedent that may have contributed to enlarging the scope of TCPA violations.
Those in the debt collection industry and other businesses were pleased with the commissioner’s comments, saying they are cautiously optimistic that the FCC could issue clarifications that can help reduce lawsuits.
Consumer advocates, however, said they are concerned that the so-called clarifications that are being sought are nothing more than an attempt to limit the scope of the TCPA and make it less useful in protecting consumers.
The TCPA was enacted in 1991 amid consumer complaints over unwanted solicitation calls to American homes. As technology evolved over the years, so did the courts’ interpretation of the TCPA, which now applies to robocalls, text messages, junk faxes, and calls to cell phones.
Mark Schiffman, a spokesperson for the American Collectors Association, a trade group representing debt collectors and creditors, said the confusion was compounded when attorneys used the lack of clarity to file lawsuits against debt collectors who were contacting debtors. He said that that was one of the reasons there has been a rise in TCPA lawsuits.
He said that one area that would need clarification from the FCC is that the TCPA should not apply to debt collectors.
“Debt collector calls are not telemarketing calls,” he said, adding that the TCPA was enacted with telemarketers in mind. “They are calls to consumers over a legitimate business issue.”
Schiffman also said the TCPA allows the use of autodialers to contact consumers at home, but prohibits autodialing to cell phones. That imposes a burden on businesses that may need to contact a large number of consumers, he said.
Such rules affect not only debt collectors but also other businesses that need to communicate with consumers, not for telemarketing but for other business purposes, he said.
“This is a broader business issue, not just a debt collection issue,” he said.
Schiffman added that the ACA is among those who have submitted a petition to the FCC asking for clarification on a number of TCPA issues.
Matthew Gibson, an attorney at the Paul Hastings law firm who represents clients on regulatory issues, including the TCPA, said that one of the thorniest issues with the law relates to the definition of what is an autodialer.
He said there is uncertainly on what devices and systems can be considered autodialers – which cannot be used for calling consumers’ cell phones without the consumers’ consent.
“The FCC has not fully weighed in on what does and does not constitute an autodialer under the TCPA, so it has been left to the courts on how best to interpret the law’s definitions, and there are varying interpretations,” he said.
In one ruling from November 2012, the FCC said that an automatic dialing system includes “any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.”
That definition is broader than the one in the TCPA, in which a device must use a random or sequential number generator in order to be considered an autodialer.
In interpreting that definition, some courts have gone as far as ruling that callers may violate the TCPA even if they manually dial a number if the device they used is capable of making automated calls.
Aside from the definition of autodialers, not everyone agrees on what constitutes consumer consent, what types of faxes are considered unsolicited, or what it means to initiate a call, to name a few.
Gibson said the FCC recently released two decisions (this and this) that clarified issues relating to automated text messages.
“The FCC’s actions were great first steps in clarifying some of the ambiguities,” Gibson said. “This is encouraging, and we look forward to action from the FCC on the remaining positions.”
Consumer advocates, however, say the petitions for clarification are really not a quest for clarification, but an effort to leave the consumer with little legal protection.
Scott Nelson, an attorney at Public Citizen, a Washington, D.C. consumer advocacy group, said the FCC has held the position that autodialers cannot be used to call consumers’ cell phones.
Through petitions for so-called clarifications, “the [collection] industry wants to use autodialing equipment to call people’s cell phones,” he said.
If there is a need for clarification, it is in those areas where the collection industry is not pushing for clarity, he said.
One example is whether companies are responsible for robocalls or junk faxes that their agents send to consumers at their behest, he said.
Nelson said he was surprised by O’Reilly’s blog post, and said he hoped that the position is O’Reilly’s own opinion and not one shared by the entire Commission.
“I think he is sending a signal that he is amenable to giving industry a break and limiting the protection that the law gives to consumers,” Nelson said. “I am not really sure why there is any reason to do that.”
Article Source: TCPA Clarification Efforts May Undercut Consumer Rights