- Created: Tuesday, 30 December 2014 20:55
By Gregory H. Lercher
This Holiday Season, bankers and debt collectors are lobbying the FCC to loosen protections to allow more unfettered robocalling. Business groups, such as the American Collectors Association, The U.S. Chamber of Commerce, and the Consumer Bankers Association, have hired lobbyists to redefine the Telephone Consumer Protection Act (“TCPA”). The TCPA, which was signed into law in 1991, protects consumers by limiting how and when businesses can use telemarketing and various types of robocalls and robotexts.
Specifically, industry lobbyists are telling the Federal Communications Commission (“FCC”) to limit the term “called party” under the TCPA to only those consumers who were the “intended recipients” of the call. Essentially, this allows businesses to undermine the purpose of the TCPA by permitting otherwise illegal calling practices simply because the robocaller “thought” it was calling someone it had permission to call. Essentially, companies that use robocalling want to be excused from violating the law if they can claim they had their head in the snow while they were placing the call that broke that law.
This proposed change, which would be harmful to consumers, should be rejected for several reasons:
- First, Congress clearly intended for this statute to protect consumers from the detrimental impact of non-consensual auto-dialed and prerecorded voice calls to their cell phones. Even a cursory review of the TCPA’s language establishes that “called party” refers to the actual called party, not the person the caller intended to call.
- Second, “wrong number” calls to reassigned numbers are largely the result of inadequate calling practices and a widespread culture of industry indifference. These companies take the position that they should be able to call consumers using an autodialer or with artificial/prerecorded voice technology, whether consumers actually want the calls or not. Even worse, many times these companies know that they are making illegal calls but argue that manual dialing is less efficient and costs more.
- Third, the FCC has no authority to “clarify” the definition of a “called party” or exempt other illegal calls under 47 U.S.C. § 227(b)(1)(A). The statute expressly delineates the FCC’s exemption powers and only exempts cell phone calls that are not charged to the called party.
- Fourth, courts have overwhelmingly rejected the “intended recipient” argument. For example, see Soppet v. Enhanced Recovery Co., 679 F.3d 637, 640 (7th Cir. 2012) (holding that the phrase “intended recipient” does not appear anywhere in § 227, so what justification could there be for equating ‘called party’ with ‘intended recipient of the call’?”).
- Finally, companies have the means and ability to follow the law; that some make the strategic business decision to violate the TCPA is not a reason to change it.
The FCC is currently considering these arguments that affect you and other consumers. Here’s who you can contact to protect your privacy and stop the noise:
Let the FCC know your experience with robocalls and how wrong party robocalls are a constant source of frustration in addition to one of the FCC’s most complained about consumer issues. As a result, the TCPA should be strengthened, not weakened. You can contact the FCC by e-mailing each of the Commissioners at the following links. You can send the same e-mail to each of the five commissioners because they all have different staff.
- Chairman Tom Wheeler
- Comm. Mignon Clyburn
- Comm. Jessica Rosenworcel
- Comm. Ajit Pai
- Comm. Michael O'Rielly
You can also contact your Congressperson and contact your state’s Attorney General and tell them not to let the FCC and private industry take away your right to peace and privacy on your cell phone. There is nothing forcing companies to use autodialers, robocalls, or prerecorded voice technology. Requiring companies that choose to use these technologies to take steps to ensure that the people they call actually consented to being called is not an unreasonable request, and in fact, has been the law for more than two decades.
Source: NACA/NCLC Comments filed with the FCC on the pending FCC petitions on November 17, 2014.
LeavenLaw is an AV-rated law firm that helps consumers with problems associated with debt. If you have received debt collection calls from a bank or debt collector, there is a chance that your rights may have been violated. If you have repeatedly received debt collection calls to your cell phone, or have received unwanted texts or telemarketing calls, please do not hesitate to contact the consumer protection lawyers at LeavenLaw to discuss your case at a free initial consultation. www.LeavenLaw.com 1-855-Leaven-Law