During the presidential campaign, Donald Trump came under fire for a number of reasons. One reason, missed by top headlines, was his unsolicited dispatch of a mass text saying “Reply YES to subscribe to Donald J. Trump for President. Your subscription will help make America great again! Msg&data rates may apply.” That text, sent to thousands of people, was the subject of two heated class action suits against then-presidential candidate Trump. According to one lawsuit, Trump failed to obtain consent from the recipients and used an autodialing system to disseminate the text, effectively violating a lesser known law called the Telephone Consumer Protection Act (TCPA), a statute formally implemented by the Federal Communications Commission (FCC). The second case made similar allegations, but specifically highlighted the fact that no consent was given to call the plaintiffs’ cell phones. This too was deemed a violation of the TCPA.
The Conditions Are Set
Now, as observed by Bloomberg, Trump is president, Republicans control the White House, a conservative heads up the FCC and Justice Gorsuch promulgates a conservative jurisprudence as the newest member of the highest court. With the pieces in place, the federal government is set to take on the TCPA, a law that for some time has been a tool for consumer rights advocates and a thorn in the side of big business.
2015 Ruling
The law was first passed in 1991 and was meant to protect consumers from incessant telemarketing schemes that included automated dialing systems and pre-recorded messages. Business lobbyists and Republicans have been particularly concerned about the broad interpretation of the TCPA first issued in the 2015 Omnibus Declaratory Ruling and Order, which essentially expanded the definition of an autodialer to include most telecommunication devices – namely smart phones. That order broadened the scope of consumer protections.
Some Details
The FCC initiated the procedures that led to the ruling because of an influx of 21 petitions from various companies and business groups. When the order was published, industries were disappointed to discover that the FCC broadened the definition of automatic telephone dialing systems (ATDS). They were also disappointed to see that the FCC had left room for third-party app-makers to be liable under certain conditions – meaning software companies producing applications designed to facilitate telemarketing strategies can in some circumstances be held liable under the FCC’s interpretation. The ruling also specified the appropriate conditions for revoking consent. Essentially, any consumer may use a reasonable method to revoke their consent at any given time.
ACA International, et al. v. FCC
Almost exactly a year ago, the DC Circuit Court of Appeals heard three hours of oral arguments in ACA International, et al. v. FCC, a suit filed in July, 2015. The 2015 Omnibus Ruling took center stage during the arguments. Overall, the petitioners claimed that the FCC breached the limits of its authority by expanding the TCPA beyond the original intention of Congress.
Specifically, they argued that the FCC’s interpretation of the ATDS is overly broad and vague, contending that the commission failed to choose a single interpretation of the statute. Instead, the petitioner argued, the FCC used multiple interpretations of the ATDS in its 2015 ruling. Relatedly, the petitioner contended that the rules pertaining to revocation of consent were arbitrary and capricious. Additionally, it was argued that the FCC’s “called party” interpretation was unfair to businesses, as the commission defined the “called party” as the person who regularly handles the phone. Under this interpretation, the petitioner argued, businesses could unintentionally call the wrong person and face liability for doing so. Petitioner suggested “expected recipient” as an alternative term.
Supporters
Organizations like the Institute for Legal Reform (ILR) root for ACA International because the FCC’s interpretation has purportedly led to a boom in litigation, affecting nearly 40 different industries. Business advocates like the ILR fail to take into account the very real limitations imposed on the everyday consumer. Ordinary people lack the resources of large companies. For this reason, tough regulations can help maintain a somewhat even playing field. That consumers have an easier time being compensated for their grievances is only bad from the point of view of businesses. For consumers, regulations like the TCPA are necessary, as are the interpretations that bolster them.
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