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February 2017 TCPA Compliance Monitoring Report
While there is a widely held view that new Federal Communications Commission (“FCC” or “Commission”) Chairman Ajit Pai will roll back regulation and reduce enforcement risk for telecommunications providers, businesses involved in robocalling should not assume Pai’s deregulatory approach will protect them from Telephone Consumer Protection Act (“TCPA”) liability. Pai makes no secret of his narrow view of the FCC’s regulatory authority; however, the Chairman has also suggested that robust enforcement action will remain a key tool of the FCC where he believes the Commission can lawfully exercise its jurisdiction.
Curtailing unlawful robocalls using the TCPA is likely to be one of Pai’s early priorities. At the FCC’s Consumer Advisory Committee meeting on January 27, 2017, Pai described illegal robocalls, which are the number one consumer complaint received by the FCC, as a “scourge” and indicated his intent to take “aggressive action” concerning the issue.
Pai’s support for tough TCPA enforcement is not new. Despite criticizing several Commission TCPA decisions under then-Chairman Wheeler, Pai’s dissents primarily focused on the, in Pai’s view, misguided means the FCC used to attack illegal robocalls. For example, Pai opposed the FCC’s adoption of a one-call safe harbor for calls to reassigned phone numbers in the Commission’s July 2015 Omnibus Order as a litigation trap for well-intentioned callers and a boon for trial lawyers and class action plaintiffs. Pai also criticized the Commission’s exclusion of federal contractors from TCPA liability as an unnecessary and unsupportable TCPA loophole. However, in these dissents, Pai made clear that he objected to what he views as ineffective TCPA policy, not to the purpose of the TCPA. Indeed, in his Omnibus Order dissent, Pai said “[f]ar too many Americans are receiving far too many fraudulent telemarketing calls” and that the problem is “only getting worse.”
With that said, the FCC will likely change its approach to combating illegal robocalls under Pai. The Chairman expressed interest in fostering more industry engagement with the Commission at the Consumer Advisory Committee meeting. According to Pai, that engagement might mean development of a reassigned number database to help callers avoid inadvertently dialing reassigned numbers. It could also include the creation of a safe harbor permitting carriers to block spoofed calls from overseas, where many illegal robocalls originate.
Increased industry engagement is welcome news for many businesses that rely on autodialed calls or artificial or prerecorded voice messages, but businesses should continue monitoring TCPA developments at the FCC. Companies that fail to do so risk missing opportunities to provide input on how to make the TCPA work for consumers and businesses alike and may find themselves at even higher risk of enforcement action. For example, Pai indicated he supports increased enforcement against illegal robocallers at the Consumer Advisory Committee meeting. Moreover, his past criticism of the Enforcement Bureau’s failure to collect the headline-grabbing forfeitures it imposed under Chairman Wheeler raises the possibility that companies that find themselves in the crosshairs of Pai’s Enforcement Bureau could face more severe enforcement consequences than during the past eight years.
If you have any questions about your company’s TCPA compliance or are interested in taking advantage of opportunities for industry engagement with the FCC on TCPA issues, please contact Seth Williams at slw@commlawgroup.com, Jane Wagner at jlw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com
