The June 18th decisions came in response to petitions seeking clarification of the scope of the Telephone Consumer Protection Act (TCPA), created in 1991 to curtail unwanted automated telemarketing calls delivering prerecorded messages to consumers without prior express consent. But in this instance, the FCC went too far by imposing gratuitous restrictions on legitimate ways in which businesses reach consumers.
“The FCC has strayed from the TCPA’s original purpose and is now using it to target historically legitimate business practices,” said attorney Jeffrey Backman, with Greenspoon Marder Law in Fort Lauderdale, who regularly defends TCPA claims brought by both private litigants and regulatory agencies. “The new measures simply preclude normal communication between businesses and their very own customers.”
Businesses that use dialing technology will now be severely limited on their ability to do so. The FCC has expanded the prohibition of technology that randomly or sequentially generates and dials telephone numbers (what the statute actually says) to include any kind of technology able to call from a pre-loaded list or capable of auto-dialing. This draconian definition could keep companies from using a standard mobile telephone to communicate with their clients. This limitation would now include debt collection calls as well as pertinent customer-service type calls such as product safety information, airline updates, utility outages, purchase confirmation messages, or even school updates about a person’s child.
“Plainly put, this is just too expansive and fails to provide a balance between protecting consumers and legitimate business interests,” said Richard Epstein, chair of the firm’s complex litigation and class action defense practice.
Calls to cellular telephones are even more restricted. The FCC’s decisions make it possible any call from one cellular telephone to another, regardless of content, without prior express written consent, could be a violation of the statute.
“While it is commendable that the FCC is trying to keep up with evolving technology, punishing creative and innovative ways to better serve and communicate with consumers is not the solution,” Backman said. “The only winners here are plaintiff lawyers who are being incentivized to sue for practices that really harm no one.”