Difference between harassing robocalls and legitimate business calls needs to be defined

First enacted in 1991 to address disruptive telemarketing calls during dinner time, the Telephone Consumer Protection Act remains in a state of utter confusion. The law and its interpretation have failed to keep up with modern technological advancements that drive how we communicate today. Unlike in 1991, over half of U.S. households, today are cell phone-only, and businesses rely on modern technologies to effectively communicate with their consumers.

Congress’s intent for the TCPA was to resolve consumers’ growing concerns and outrage over increasing scam and telemarketing calls. However, the TCPA’s conflicting interpretations and failure to modernize have led to restricted communications for businesses and consumers as technology advanced into the 21st century. Lack of clarity and increased confusion surrounding the TCPA has ultimately reduced consumer choice in how businesses can communicate pertinent and often time-sensitive information to their customers and constituents.

It has also left businesses vulnerable to frivolous class action litigation that has skyrocketed exponentially over the past 10 years. Indeed, there are currently hundreds of law firms significantly involved in pursuing TCPA actions, with “professional plaintiffs” attempting to make a living by receiving phone calls, texts, and faxes, waiting for those communications to accumulate and then filing TCPA lawsuits seeking damages. To date, TCPA lawsuits have been filed against companies across 40 different industries, including education, retail, health care, security companies, and solar providers.

The FCC’s interpretation has gone far beyond the original intent of the statute, and members of Congress, the courts, and the FCC itself have acknowledged that clarity is desperately needed. Due to the FCC’s expansive interpretation of the TCPA, confusion has for years lingered over what qualifies as an Automated Telephone Dialing System (ATDS or auto-dialer). This eventually led to the 2018 ruling by the D.C. Circuit Court of Appeals, which rejected the FCC’s overbroad definition of an auto-dialer — which, according to the FCC’s latest interpretation, would include an iPhone. As FCC Chairman Ajit Pai noted last year, the 77 percent  of Americans who own smartphones are “a TCPA-violator-in-waiting, if not a violator-in-fact.”

With a renewed interest in setting clear guidelines for how the TCPA should be interpreted, the Senate Committee on Commerce, Science, and Transportation sent a letter to Pai calling for the FCC to address the use of modern technologies to contact consumers and determine solutions for businesses relying on communications. In this letter, the committee highlights how the FCC’s previous interpretations of the TCPA “have resulted in uncertainty about how those calling in good faith can comply with FCC regulations, making it more difficult for consumers to receive communications they want and need.” The Senate Commerce Committee’s efforts, led by Chairman John Thune, continued with oversight hearings — including with Pai — to discuss appropriate action to interpret and clarify the TCPA.

In response to the call for clarification, Pai acknowledged the swift need to clarify issues under the TCPA, including reconsideration of the definition and scope of an auto-dialer in efforts to address growing concerns with uncertainty surrounding industries conducting business with consumers in good faith. While this action is encouraging, more can and should be done to draw a greater distinction between fraudulent, bad actors and legitimate business.

It is clear we are moving towards untangling the web of the TCPA in a way that protects consumers while allowing for legitimate business communications, and we must get this effort across the finish line. At the end of 2018, Pai released a proposal to create a comprehensive reassigned numbers database to address onerous auto-dialer restrictions that protect consumer consent laws while safeguarding legitimate businesses from frivolous lawsuits. Now it’s time to complete TCPA reform and update the auto-dialer definition.

In times of modern and evolving communications, the FCC must clearly define boundaries between harassing and unreasonable robocalls and legitimate business communications that supports the well-being and productivity of this nation. Sensible clarifications must be made, and I encourage the FCC, the Senate Commerce Committee, and Chairman Roger Wicker to work together towards a viable solution that allows businesses to do their jobs and consumers to be adequately be protected from predatory actions that prevent effective communications.

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LisaIm is the chair of the Institute for Collection Leadership.