Part III - TCPA: Legislative Updates - Interest Builds in Congress to Revisit the TCPA

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Mintz Levin

[co-author: Sam Rothbloom]

Congressional Hearings on the TCPA

Both the House Energy & Commerce Committee and Senate Commerce Committee have shown interest in updating the TCPA by holding hearings on the law. On September 22nd, the House Energy and Commerce Subcommittee on Communications and Technology held a hearing exploring ways to modernize the TCPA. Most of the witnesses argued Congress should clarify the TCPA’s requirements for businesses seeking to comply with the law’s restrictions on telemarketing. Richard Shockey, Principal of Shockey Consulting, and Shaun W. Mock, Chief Financial Officer of Snapping Shoals Electric Membership Corporation, urged Congress to establish a safe harbor for complying companies and adopt “good faith” provisions. Although members disagreed, mainly along party lines, over some specifics and the scope of possible legislative changes, many of them expressed openness to fine-tuning the law.

In addition, on September 27th, issues related to the TCPA came up during the Senate Commerce Committee’s oversight hearing on the Federal Trade Commission. Testifying before the Committee, FTC Chair Edith Ramirez and Commissioner Maureen Ohlhausen pledged to continue to combat illegal robocalls by pursuing fraudulent telemarketers and disseminating educational materials on robocalls to consumers.

The oversight hearing followed a hearing that the Committee held on the TCPA back in May, coinciding with the law’s twenty-fifth anniversary. Witnesses before the committee noted some of the legal developments and technological advances that have occurred since the law’s passage that may warrant updates to the law. Witnesses discussed a range of issues, including the rise in TCPA litigation, the reassignment of phone numbers, and business’ challenges complying with the TCPA. Chairman John Thune (R-SD) advocated that Congress revisit the TCPA and consider potential modifications that would clarify ambiguity for the business community and strengthen consumer protections.

Legislative Proposals to Update the TCPA

In addition to these recent hearings, several pieces of legislation to limit unwanted telephone communications are pending in the U.S. Congress. One of these bills — the Anti-Spoofing Act of 2015 (H.R. 2669) — passed the House Energy and Commerce Committee by voice vote in September. Sponsored by Representatives Grace Meng (D-NY) and Joe Barton (R-TX), H.R. 2669 would close a legal loophole that bad actors exploit to “spoof” (i.e., to present false caller ID information) in order to misrepresent themselves in calls with unsuspecting victims. The bill, which now awaits a vote on the House floor, has a companion in the Senate introduced by Senators Bill Nelson (D-FL), Ranking Member of the Senate Commerce Committee, and Deb Fischer (R-NE). The Nelson-Fischer bill has been referred to the Senate Commerce Committee but has not yet been considered at a markup.

Another pending anti-spoofing bill, the ROBOCOP Act, would require telecommunications carriers to block calls with falsified caller ID. Its House and Senate versions, authored, respectively, by Representative Jackie Speier (D-CA) and Senator Chuck Schumer (D-NY), are pending before the House E&C and Senate Commerce Committees. These bills are the legislative counterpart to the FCC’s Robocall Strike Force noted in the regulatory section.

Also, in April of this year, Senator Steve Daines (R-MT), filed an amendment to the FCC Reauthorization Act that would permit companies that have compliance programs monitoring their independent third-party vendors or service providers to cite these measures as an affirmative compliance defense. The proposal stipulates that companies can invoke this defense only if their compliance program requires by contract that its third-party partner complies with the TCPA, implements third-party monitoring and review, and maintains records. Unlike previous TCPA-related proposals, Senator Daines’ measure would not deny consumers a private right of action or cap potential damages, nor would it expand any telemarketing allowances under the TCPA. Representatives from industry and consumer groups have met to discuss Senator Daines’ legislation. They last met at a multi-stakeholder session convened by the Council for Better Business Bureaus, which focused on the state of TCPA litigation, the rise of the compliance industry, advances in technology, and specifically, on Senator Daines’ legislative language.

Finally, the Professional Association for Customer Engagement (PACE) hosted an annual TCPA summit on September 19-20 in Washington, D.C. PACE is the only non-profit trade organization dedicated exclusively to the advancement of companies that use contact centers as an integral channel of operations. At the summit, speakers discussed a number of TCPA priorities, such as the language in Senator Daines’ proposal. Following the conference, PACE and its members companies met with members of Congress and their staff to discuss the TCPA and potential modifications, including Senator Daines’ amendment.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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