House Energy And Commerce Committee Calls For Modernizing The TCPA

By Pamela J. Garvie, Andrew C. Glass, Gregory N. Blase, Peter V. Nelson, and Elana R. Reman

On September 22, 2016, the House Energy and Commerce Committee’s Subcommittee on Communications and Technology held a hearing on modernizing the TCPA. The hearing is significant because it marks the first time that lawmakers on both sides of the aisle have said the TCPA needs to be updated to reflect changing technology and business practices and to draw a distinction between “harassing, malicious” calls from “bad actors” and “legitimate, informational calls that consumers want.” Republican members of the Subcommittee have raised concerns about the TCPA during past FCC oversight hearings, but this hearing actually was held at the request of full Committee Ranking Democrat Member Frank Pallone Jr. (D-NJ), Subcommittee Ranking Democrat Anna Eshoo (D-CA), and congresswoman Jan Schakowsky (D-IL).

Both Democratic and Republican Committee members, who spoke in the hearing, generally expressed a desire for stronger consumer protections against unwanted robocalls, but lamented that the TCPA, in its current form, falls short. The Act fails on two fronts: it is unsuccessful at protecting consumers against unwanted robocalls and phone scams because bad actors intentionally disregard the TCPA, and it has had the unintended consequence of capturing good actors in the crosshairs, subjecting them to litigation for alleged noncompliance despite their good faith efforts to comply with the law. Subcommittee Chairman Greg Walden (R-OR) highlighted that for small businesses attempting to serve their customers through desired alerts and communications, a massive TCPA class-action lawsuit could mean bankruptcy.

Demonstrating a bipartisan desire to move forward with TCPA reform, congresswoman Eshoo and congresswoman Marsha Blackburn (R-TN) both pressed the panel of witnesses for specific recommendations for changes to the TCPA.

Michelle Turano, Vice President of Public Policy and Government Affairs at WellCare Health Plans, a company that provides government-sponsored managed health care services to predominantly low-income, elderly, and transient customers, discussed how the FCC’s declaratory ruling hinders WellCare’s ability to provide its customers, many of whom do not have land lines or email, with vital health alerts, preventative screening reminders, refill notifications, and care instructions. Specifically, Ms. Turano recommended that Congress clarify that the provision of a phone number to a HIPAA-covered entity or business associate for interactions subject to HIPAA should constitute prior express consent for health care treatment and payment communications to that number. Ms. Turano also addressed the challenges of compliance with the FCC’s “one call” safe harbor for reassigned numbers, which imports on the caller knowledge of the reassigned number based off of one unanswered phone call, effectively penalizing the caller for attempting to provide consumers with state-mandated information or other vital health care information.

Shaun Mock, CFO of Snapping Shoals Electric Membership Corporation, a co-op providing electricity to many rural, low-income Americans, also focused on the challenges that reassigned numbers pose to his company and urged that there be some “good faith” requirement that parties receiving unwanted calls due to a number reassignment notify the company before filing a TCPA suit. Richard Shockey, of Shockey Consulting, discussed the use of various technologies to identify or block unwanted calls and texts. He also recommended the adoption of safe harbor and good-faith provisions to address some of the unintended consequences of the TCPA and the FCC’s interpretation of it. Spencer Waller, a professor and director of the Institute for Consumer Antitrust Studies at Loyola University Chicago, recommended increasing the TCPA enforcement power of state attorneys general and the FTC.

In general, Democratic Members emphasized that Congress should not approve more loopholes to the TCPA, but instead should strengthen protections for consumers. Republican Members emphasized the need for finding solutions that will protect consumers from harassing, malicious calls they don’t want and ensure they get legitimate calls they do want. Chairman Walden and Rep. Robert Latta (R-OH) also expressed concerns with the broad definition of an autodialer, which has led to confusion over who must comply with TCPA restrictions.

Despite their differences in focus, Democrats and Republicans expressed a consensus that modernization of the TCPA is long overdue. They also called for additional hearings on the issue. While many roadblocks still remain, the hearing still helped set the stage for what hopefully will be a productive, bipartisan reform effort to allow an aging law to keep pace with 21st century technology, consumer preferences, and business practices.

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