TCPA Declaratory Ruling Seen Likely To Lead to Industry Legal Challenge
A declaratory ruling on Telephone Consumer Protection Act rules, slated for a vote at the FCC's Thursday meeting (see 1505270048), has changed little, if at all, since being circulated by Chairman Tom Wheeler, industry and agency officials told us Tuesday. Industry lawyers say a legal challenge to the declaratory ruling appears all but certain.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Commissioner Ajit Pai warned Tuesday that the FCC’s expected approach on TCPA will lead to more lawsuits. Pai is expected to vote against the order Thursday (see 1506030043). The TCPA “has become a fertile ground for lawsuit abuse,” Pai said in an opinion piece in The Daily Caller. “While only 14 TCPA cases were filed in 2008, lawyers filed 1,908 such suits during just the first nine months of 2014.” “Unfortunately,” he said, the FCC “is set to give the trial bar another boost later this week.”
There are many examples of abuse of the TCPA. Pai wrote, citing the case of TaxiMagic, a precursor to Uber. “TaxiMagic faced a class-action lawsuit because it sent a confirmatory text message to a customer who called for a cab -- one that indicated the cab’s number and when it was dispatched to the customer’s location,” he said. “Some lawyers go to ridiculous lengths to generate new TCPA business,” Pai said. “Some have asked family members, friends, and significant others to download calling, voicemail, and texting apps in order to sue the companies behind each app.”
Lawyers who have sought changes to the declaratory ruling on behalf of their clients said legal challenges to the order are likely. “The question is not whether the order will be appealed, but by how many parties,” one lawyer said. “Most think the commission, based on what has been said publicly, has really gone off the deep end on this one,” a second lawyer said. Among potential problem areas with the declaratory ruling is how it defines “autodialers.” One attorney said it appears even IoT devices, such as connected refrigerators, could be considered autodialers under the language of the order.
The attorneys general of Indiana and Missouri in a letter to the commission, posted Tuesday in docket 02-278, urged the FCC majority to move forward on the TCPA rules. Tightening the rules is critical since unwanted robocalls are not only “invasive” but “frequently an attempt to scam people out of their hard-earned money,” said Gregory Zoeller of Indiana and Chris Koster of Missouri.
Representatives of the Internet Association met with FCC officials to seek assurance that Internet providers aren't subject to penalties under revised rules. “The IA’s membership does not include robocallers or entities engaging in the behavior meant to be proscribed by the Act,” the group said. “IA’s members typically provide a platform that enables and facilitates their users to communicate among and between a global community in real time without interference, editing, or censorship from the Internet platform.”