Rules on Automated Calls to Wireless Should Be Relaxed, U.S. Chamber Says

In October, PACE asked for a declaratory ruling from the FCC that a system is not an ATDS “unless it has the capacity to, inter alia, dial numbers without human intervention” and is limited in “what it is capable of doing, without further modification, at the time the call is placed.” Clarity is needed because of an “explosion” of class-action lawsuits brought under the TCPA, which pose “a significant and unnecessary threat to legitimate businesses,” Pace said (http://bit.ly/1c1JSUt).

"Instead of going after abusive marketers as originally intended by Congress, the TCPA has been turned into a ‘juggernaut: a destructive force that threatens companies with annihilation for technical violations that cause no actual injury or harm to any consumer,'” the chamber said (http://bit.ly/1dyHow2). “A company facing a TCPA lawsuit is forced to decide whether to reach a settlement with the plaintiff’s counsel or to accept the risk and spend significant resources defending itself against an action where the alleged statutory damages may be in the millions or billions of dollars.”

DirecTV said there’s a clear need for the clarity sought by PACE. “With the TCPA’s uncapped statutory damages promising millions of dollars for thousands of calls (or call attempts), private attorneys have been over-incentivized to bring lawsuits under the TCPA,” DirecTV said in a filing at the commission (http://bit.ly/1gSyYF4). “In particular, a cottage industry of TCPA attorneys stands ready to file lawsuits for any call or text received on a client’s cellphone, regardless of whether the call involved random or sequentially dialed telemarketing calls, or calls placed to specific numbers for legitimate business purposes, or to communicate important transactional or other informational messages.”

The Results Companies, which provide contact center and other services to businesses, agreed the rule should be clarified. “While it was the intent of Congress and the FCC, in promulgating the regulation, to prevent abusive practices such as abandonment, fraud, etc., when passing the TCPA, in no way can equipment which dials only with specific direction from a human implicate any of those concerns,” the company told the FCC (http://bit.ly/1hzIfiS).

But Joe Shields, spokesman for public interest group Private Citizen, said the FCC should reject the petition and protect wireless subscribers. “This is not the first petition from the same petitioner seeking the same end result,” Shields said in comments filed at the FCC (http://bit.ly/1c36m3Q). “It is impeccably clear that the petitioner seeks from the Commission a definition of ATDS that their members can use to reconfigure their automatic dialers so they can circumvent the prior express consent of the called party requirement of the TCPA.”

The FCC also recently sought comment on a petition by the Cargo Airline Association seeking a declaration that autodialed or prerecorded calls to a wireless telephone number for the purpose of notifying the recipient regarding delivery of a package are exempt from the TCPA (http://bit.ly/1bmPzbU).

The American Bankers Association and the Consumer Bankers Association supported the petition. “Unfortunately, mobile package delivery notices are discouraged by the same threat that inhibits many other useful mobile communications: class-action lawsuits brought under the TCPA’s ‘autodialer rule,’ seeking uncapped statutory damages that can run into billions of dollars, that punish responsible businesses without providing any benefit to consumers,” the groups said (http://bit.ly/JZFgFc).