“Computerized calls are the scourge of modern civilization.” This 1991 quote by Senator Fritz Hollings is as relatable today as it was nearly thirty years ago. Whether it’s a call congratulating you on winning a vacation to Florida, a voicemail recording in Mandarin, or your trusty cable provider soliciting even more of your money, every consumer appreciates how pervasive these calls are. Do not call registries, attempts to block offending numbers, and apps created to filter out spam calls fail to provide meaningful protection against evasive tricks like spoofing (where the spam-callers use an area code and number similar to your own). A recent analysis estimated that the number of robocalls made per month increased by over a billion in the first half of 2018. A large percentage of these calls are scams (like the recording in Mandarin) or debt collections. But a substantial number are telemarketing calls (like the evening ring from your neighborhood cable service). And consumer groups are worried that recent changes in the law and regulations restricting telemarketing are going to make the situation worse.
Congress enacted the Telephone Consumer Protection Act in 1991 to protect consumers from the proliferation of automated telemarketing calls. The TCPA prohibits calls to cellular phones that are placed using an automatic dialing system or a pre-recorded message, without the prior consent of the recipient. The Act authorizes a private right of action and plaintiffs may recover at least $500 in damages for each call made in violation of the statute, and up to treble damages for each “willful or knowing” violation.
The TCPA delegates authority to the Federal Communications Commission (“FCC”) to prescribe regulations implementing the statue. Since the TCPA was enacted in 1991, the FCC has issued a series of orders and rulings in furtherance of the Act. These orders attempt to define the statutory standards to keep pace with the exponential evolution of technology of the last three decades. These attempts have not been successful.
Defining the statutory term “automatic telephone dialing system” has proven especially contentious. Since 2003, the FCC has attempted to clarify the standard for this elusive term in at least four orders. All of these were decimated in the D.C. Circuit’s decision in ACA Int’l v. FCC in March 2018. Holding that the FCC’s interpretations of an autodialer failed to satisfy the requirement of reasoned decision-making, the court vacated them, effectively leaving only the 1991 statutory language to guide district courts in deciding what type of equipment qualifies as an automatic dialing system.
It goes without saying that a 1991 definition of telemarketing equipment is unworkable today. Following the ACA Int’l decision, the FCC solicited comments on the scope of the autodialer definition as it considers issuing new rules to provide clarity to businesses and litigants. In the purgatory, a circuit split developed. The Ninth Circuit adopted an expansive interpretation similar to the one struck down in the ACA Int’l decision. The Third Circuit chose to follow the ACA Int’l decision and adhere to the plain language of the TCPA.
What does this mean for consumers? Resolution of the issue requires action by the FCC or Congress. Lobbyists have been active on both sides, with consumer protection groups calling for strict FCC regulation and business arguing that too-broad definitions prevent them from reaching their customers.
Obviously a lot is at stake. A private right of action worth at least $500 for each call can be a powerful tool. Whether it has any weight will be determined by the FCC. In the meantime, don’t pick up your phone.*
*Yana Nebuchina is an associate editor on the Michigan Technology Law Review.