By Jimmy H. Koo
Congress should update the Telephone Consumer Protection Act to give businesses more certainty on prohibited practices while preserving the law’s consumer privacy function: protection from unsolicited robocalls, faxes, and texts, witnesses said June 13 at a House Judiciary subcommittee hearing.
The TCPA allows consumers to sue companies that make phone calls using an automatic dialing system without prior consent. As a strict liability statute without a cap on damages, many plaintiffs attorneys have pursued TCPA class actions, often resulting in large settlements. Further, messaging technologies have evolved a great deal since the TCPA was enacted, giving rise to inconsistent interpretations and enforcement of the statute.
This combination of a strict liability statute, no cap on damages, and inconsistent interpretation of the statute has also led to many frivolous lawsuits that clog courts’ dockets.
Rep. Steve King (R-Iowa), chairman of the Subcommittee on the Constitution and Civil Justice, said it is important to explore the “unintended consequences of the TCPA and the lawsuit abuse, which has turned into an industry.”
Still, he said not to forget the original goal of the statute—to protect the privacy interest of consumers.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said the TCPA shows the “dangers of legislation with broad intent but narrow application to specific technologies.”
Many witnesses called for Congress to end what they called abusive practices under the TCPA by law firms. Some firms use the TCPA to “shake down” businesses, Rob Sweeney, founder and CEO of communications technology company Mobile Media Technologies LLC, said in his prepared statement. Sweeney was referring to his own experiences with a law which, according to his words, exploited the “unpredictable and overbroad TCPA regulations.”
Becca J. Wahlquist, partner at Snell & Wilmer LLP in Los Angeles and head of the firm’s TCPA practice group, said that the TCPA wasn’t intended to apply to text messages or designed to subject companies to claims over autodialed calls. “So long as the TCPA continues expanding, unchecked by Congress, federal courts will continue to have their case calendars fill up with TCPA cases that are not about actual injury or harm, but uncapped statutory damages,” she said.
“Congress needs to take a hard look at updating the TCPA,” Wahlquist said.
Hassan Zavareei, a plaintiff-side litigation partner at Tycko Zavareei LLP in Washington, disagreed. The TCPA is working, and “class actions serve as a strong deterrent to the impulse by some businesses to use big data to bombard American cell phones with telemarketing calls and text messages,” Zavareei said in his prepared statement.
However, according to Zavareei, limiting private right of action would be disastrous, making mobile phones “virtually unusable” due to the volume of telemarketing calls and texts. “It’ll be the Wild West,” Zavareei said during his testimony.
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Further information on the hearing, including an archived webcast and witness prepared testimony, is available at http://src.bna.com/pOY
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