Senate Commerce Committee Calls Up the TCPA for Review
By Pamela J. Garvie and Peter V. Nelson
On May 18, 2016, the Senate Commerce Committee held a hearing to examine the TCPA’s effects on businesses and consumers, and assess whether the law is ripe for reform. The TCPA will mark its 25-year anniversary this coming December and, according to Senate Commerce Committee Chairman John Thune (R-SD), is “showing its age.” (The hearing transcript may be found here.)
The Committee members who spoke at the hearing were, in general, divided on party lines on the need for reform. Republicans noted the rising tide of TCPA litigation – now the second most filed type of case in federal courts – and the corresponding costs in terms of money outlays, delays in providing consumers with important health, safety, and financial information, and lost innovation opportunities. They also noted that the average payout to plaintiffs’ attorneys in TCPA suits is approximately $2.4 million, while the average consumer award is just $4.12. Senator Roy Blunt (R-MO) observed that Congress needs to figure how to address two very different problems — the problem of scam robocalls being generated from overseas and the problem of legitimate businesses trying to reach people whose numbers have been reassigned.
The Democrats were more skeptical about the need for reform, and defended the TCPA as one of the “most loved consumer protection statutes,” in the words of Committee Ranking Member Bill Nelson (D-FL). He also said “the idea of giving access for robocalls to consumers’ cell phones without their consent is an idea that is dead on arrival with the American people.” Senator Claire McCaskill (D-MO) went so far as to describe unwanted robocalls as “the biggest consumer problem in the country.” Senator Dick Blumenthal (D-CT) agreed with his Democratic colleagues, and even proposed that the TCPA be strengthened. Senator Ed Markey (D-MA), the author of the TCPA, and Senator McCaskill also called for the passage of their bill, the “HANGUP Act”, which would repeal the 2015 Bipartisan Budget Act’s (“BBA”) TCPA exemption for collection calls on government-backed loans.
Despite the divided views, there were some areas of agreement, and some form of TCPA reform may still be possible. Business and consumer advocates at the hearing appeared united in their support for mandating a comprehensive database of reassigned numbers to aid in TCPA compliance and the need to address robocalls originating overseas. Chairman Thune also signaled that he might be willing to go along with the “HANGUP Act”.
Other proposals identified by Committee members and witnesses included the following:
- Exceptions – Indiana Attorney General Greg Zoeller said that the BBA’s debt collection exception and others created by the FCC’s TCPA declaratory order may have rendered the TCPA unconstitutional. (As discussed here, the BBA’s debt collection exception has been cited as one ground, among many, for claiming the TCPA is unconstitutional in a recently-filed lawsuit.) Rather than creating additional exceptions, Mr. Zoeller encouraged the Committee to consider “tightening up the lines of defense” against TCPA suits.
- Autodialer Definition – Other witnesses called for legislation confirming that Congress did not intend to sweep in every modern dialing system under the TCPA’s definition of an “automatic telephone dialing system.”
- Compliance Programs – Senator Steve Daines (R-MT) proposed allowing businesses with established TCPA compliance programs to raise them as a defense in TCPA suits.
- Higher Penalties – Senator Blumenthal proposed increasing statutory penalties for repeat violators of the TCPA.
With little time available on the Congressional calendar this year, any sustained reform effort will most certainly be delayed to the next Congress in 2017. At that time, the dynamics of the debate will be influenced by the new Presidential administration and the balance of power in Congress following this year’s elections. The path forward for any TCPA reform also is likely to be shaped by the outcome of pending court challenges to the FCC’s 2015 declaratory order and the constitutionality of the TCPA.