On June 13, the U.S. House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on “Lawsuit Abuse and the Telephone Consumer Protection Act”. The House Energy & Commerce Committee has primary jurisdiction over the TCPA. But the Judiciary Committee oversees all matters related to the administration of justice in federal courts and has been active on a number of litigation reform matters, including most recently class action reform legislation. The Subcommittee held the hearing in response to the fact that between 2010 and 2016, TCPA case filings increased by 1,272%, and today TCPA lawsuits are the largest category of class actions filed in federal court. Although some of the Subcommittee’s Democratic members, including Ranking Democrat Steve Cohen (D-TN), questioned the Committee’s jurisdictional interest in the TCPA, the hearing focused on TCPA reform––specifically with an eye toward reducing lawsuit abuse, and the Republicans said they would work with Energy & Commerce on any legislative proposals.
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).
Consumers Union, the consumer advocacy arm of Consumer Reports, has filed a letter in support of the National Consumer Law Center’s (NCLC) request that the Federal Communications Commission (FCC) stay its recent ruling on Broadnet Teleservices LLC’s Petition for Declaratory Ruling in the on-going rulemaking matter In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 while that ruling is under appeal. The July 5, 2016, Broadnet Ruling (previously discussed here) held that the TCPA, and its ban on autodialed calls to cellular telephones, does not apply to calls placed by the federal government itself, or its contractors, so long as the calls are placed in the course of conducting “official government business” and, for calls placed by contractors, the calls comply with the government’s instructions. On July 26, 2016, the NCLC moved the FCC to reconsider its ruling and stay its effect until the motion is resolved. Consumers Union is joining the request for the stay as part of its “End Robocalls” campaign, which purportedly seeks “technological solutions to the unwanted robocall problem,” according to the group’s letter to the FCC. If the requested stay is granted, federal government employees and contractors will continue to be subject to the TCPA unless the Broadnet Ruling is upheld.
On Friday, the Attorney General of the United States responded to a lawsuit brought by a bi-partisan coalition of political groups challenging the constitutionality of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.) (previously discussed here) the plaintiffs seek a declaration that the TCPA violates the First Amendment. The lawsuit asserts that the statute imposes a content-based restriction on speech that fails to pass strict scrutiny.
On July 5, 2016, the Federal Communications Commission (the “FCC” or “Commission”) released a Declaratory Ruling clarifying that the Telephone Consumer Protection Act (the “TCPA”) does not apply to autodialed or prerecorded- or artificial-voice phone calls, including text messages, made by the federal government and its contractors who are acting within the scope of their authority. The FCC did not address whether the TCPA continues to apply to state and local governments and their agents.
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.
Although the primary target of the TCPA is telemarketing and commercial solicitations, certain TCPA restrictions, including prohibitions on the use of prerecorded voice messages and automatic telephone dialing systems (“ATDS”) for calls placed to cellular phones, 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii) (hereinafter “the cell phone ban”), apply with equal force to calls made by political campaigns.
On May 12, 2016, several political organizations, American Association of Political Consultants, Inc. (“AAPC”), Democratic Party of Oregon, Inc. (“DPO”), Public Policy Polling, LLC (“PPP”), Tea Party Forward PAC (“TPF”), and Washington State Democratic Central Committee (“WSDCC”) (collectively, “Plaintiffs”), brought a First Amendment challenge to the prohibition on making unsolicited calls to wireless telephone numbers by filing a declaratory judgment action in the United States District Court for the Eastern District of North Carolina against the Attorney General of the United States. American Association of Political Consultants, Inc., et al. v. Lynch, No. 5:16-cv-00252-D (E.D.N.C. May 12, 2016).