insideARM previously published an article about a block of Democratic senators that submitted a letter to the Federal Communications Commission’s (FCC) Chairman Ajit Pai requesting broader protections for consumers under the Telephone Consumer Protection Act (TCPA). On July 24, 2018, a group of seven Republican senators followed suit and submitted their own letter to Chairman Pai on the topic. The Republicans’ letter can be read in its entirety here.

The letter signals that the TCPA was enacted “at a time when wireless technology was in its infancy.” It also states that “Congress did not intend for the TCPA to be a ‘barrier to the normal, expected or desired communications between businesses and their consumers.’” The letter called out the FCC’s past interpretation of the TCPA -- overturned by the D.C. Circuit earlier this year -- for creating barriers for businesses trying to call consumers in good faith and increasing litigation “that often does little to help consumers.”

Unlike the Democrats’ letter, the Republicans' letter requests that the FCC expeditiously clarify the TCPA. Specifically, the letter requests clarification on the definition of an Automated Telephone Dialing System (“ATDS”) -- the definition to include only calls made using an actual, not a theoretical, ATDS -- and clear rules for businesses to follow in order to comply with the TCPA.

insideARM Perspective

Clarity on how to comply with consumer protection laws is a common request for regulators, largely due to the many ambiguities and generalities of such laws.  As pointed out by the Republican senators, the FCC’s interpretation of the TCPA created uncertainty in how to comply with the law, an opening which plaintiffs’ attorneys pounced on to bring volumes of litigation against companies acting in good faith to comply with the myriad laws and regulations governing their businesses.  

Astutely, the Republican senators also call out the need for clear guidelines on how to comply with the TCPA due to the law’s age. Communication technologies have exponentially advanced since the inception of the TCPA, which creates the need for clarity on how to comply with the letter of the law in the context of modern, currently-available modes of communication. This is very similar to the FDCPA, which was enacted at a time when collection technology and practices were vastly different than they are today.

However, providing clarity on how the TCPA fits into current communication channels is likely insufficient. Technology changes daily, which calls for a creative regulatory regime that accommodates the latest trends and consumer preferences, and allows legitimate companies to engage in good faith business communications with consumers.

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