The Regulatory Impact on Development and Infrastructure

Report
Telephone Consumer Protection Act
Advocacy Update
2014 National Council of Higher Education Resources
(NCHER) Knowledge Symposium – November 4, 2014
Jason Goldman
Senior Telecommunications Policy Counsel and Managing Director
Environment, Technology & Regulatory Affairs Division
U.S. Chamber of Commerce
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Background on the Telephone
Consumer Protection Act
(TCPA)
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TCPA Was Passed 23 Years Ago

In response to complaints about unwanted phone calls,
especially during dinner time, Congress passed the
Telephone Consumer Protection Act (TCPA) in 1991.

“Computer telephone calls are invading our homes and
destroying our privacy….They wake us up in the
morning; they interrupt our dinner at night; they force
the sick and elderly out of bed; they hound us until we
want to rip the telephone right out of the wall. These
machines are out of control….[I]t has got to stop.” –
Sen. Ernest “Fritz” Hollings (D-SC)
Source: 137 Cong. Rec. S16204 at *S16205‐ S16206, 1991 WL 229525 (Nov. 7, 1991)
(Remarks of Sen. E. Hollings)
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How Technology Looked in 1991
 At the time the TCPA was passed, cellphones
resembled bricks and were often connected to a
bag.
 Wireless phones were a luxury item and the
landline was the dominant consumer
telecommunications device.
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TCPA Restrictions on Calls to Cell Phones
 Thus, certain restrictions in the TCPA are only
applicable to calls made to cell phones.
 Specifically, the TCPA prohibits the use of an
automatic telephone dialing system (ATDS) to call
or send texts to mobile phones without the consent
of the recipient.
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TCPA Restrictions on Calls to Cell Phones
SEC. 227. [47 U.S.C. 227] RESTRICTIONS ON THE USE
OF TELEPHONE EQUIPMENT
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions – It shall be unlawful for any person within the
United States, or any person outside the United States if the
recipient is within the United States–
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice–
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service,
or other radio common carrier service, or any service for
which the called party is charged for the call.
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TCPA Restrictions on Calls to Cell Phones
SEC. 227. [47 U.S.C. 227] RESTRICTIONS ON THE USE
OF TELEPHONE EQUIPMENT (continued)
(a) DEFINITIONS. – As used in this section–
(1) The term “automatic telephone dialing system” means
equipment which has the capacity–
(A) to store or produce telephone numbers to be called, using
a random or sequential number generator; and
(B) to dial such numbers.
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Statutory Damages for TCPA Non-Compliance
 TCPA provides that a consumer can receive $500
per call for a negligent violation and up to
$1500.00 per call for a willful violation.
 Damages are assessed per call or text message.
 The TCPA does not include a cap on statutory
damages.
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Why Does the TCPA Need to
be Updated?
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Wireless Usage has Changed Dramatically

In today’s mobile world, consumers expect and
demand important information instantly no matter when
or where they are located.

There have been more U.S. wireless subscribers than
residents since 2011, according to CTIA-The Wireless
Association.
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Wireless Usage has Changed Dramatically
 According to a recent CDC National Center for
Health Statistics' report, in the second half of 2013:
- 41.0% of U.S. households were “wireless-only.”
- An additional 16.1% were “wireless-mostly” (i.e., the
household has a landline but receives all or most calls on
a wireless phone).
- Thus, 57.1 percent of U.S. households rely either
exclusively or predominantly on wireless telephone
service.
Source: Stephen J. Blumberg & Julian V. Luke, Div. of Health Interview Statistics, Nat’l Ctr. for Health
Statistics, Centers for Disease Control and Prevention, Wireless Substitution: Early Release of
Estimates From the National Health Interview Survey, July–December 2013, at 1 (July 2014).
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TCPA Litigation is Surging
 At the time the TCPA was created, its sponsor,
Sen. Hollings explained the law was intended to
facilitate actions in state small claims courts, which
involve smaller sums and often do not require (or
even allow) the participation of attorneys.
 But today, TCPA cases are anything but small.
Trial lawyers have used the law to file large class
action lawsuits.
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TCPA Litigation is Surging
 The defendants in these cases are no longer just
abusive telemarketers.
 They are businesses, big and small alike, forced to
decide whether to reach a settlement with the
plaintiff’s counsel or to accept the risk and spend
significant resources defending itself against an
action where the alleged statutory damages may
be in the millions or even billions of dollars.
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TCPA Litigation Statistics
 1,908 TCPA lawsuits have been filed in 2014 (as of 9/30), an
increase of 29.9% over the same period last year.
 24 (13.6%) of the 193 TCPA lawsuits filed in September 2014,
were class actions.
Number of
Cases
2008
2009
2010
2011
2012
2013
2014
14
31
345
825
1,101
1,862
1,908
Source: Debt Collection Litigation & CFPB Complaint Statistics, September 2014, WebRecon LLC,
Oct. 17, 2014, available at http://dev.webrecon.com/debt-collection-litigation-cfpb-complaintstatistics-september-2014/; and Debt Collection Litigation & CFPB Complaint Statistics, December
2013 & Year in Review, WebRecon LLC, Jan. 22, 2014, available at http://dev.webrecon.com/debtcollection-litigation-cfpb-complaint-statistics-december-2013-year-in-review/.
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TCPA Litigation Statistics
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Current Status of Advocacy
for TCPA Update
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TCPA Advocacy Update

As wireless devices and services become even more
prevalent in our society and TCPA litigation continues
to skyrocket, we have seen more and more petitions
(currently over 50) filed at the FCC seeking clarification
by the agency of its TCPA rules.

Examples of common issues raised in the petitions:
-
Definition of autodialer;
Definition of capacity (hypothetical vs. current);
Definition of called party; and
Reassigned/wrongly dialed numbers.
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TCPA Advocacy Update

At the FCC and on Capitol Hill, the Chamber has
argued the FCC should issue clarifying rules and, if
necessary, commence a rulemaking proceeding.

In the short term, the FCC needs to act to:
- Bring regulatory certainty to the business community; and
- Stem the tsunami of class action TCPA lawsuits driven not by
aggrieved consumers, but by the opportunist plaintiffs’ firms
taking advantage of uncertainty in the law to rake in attorney
fees.

In the long term, statutory changes to the TCPA are
necessary.
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Additional Resources
 U.S. Chamber TCPA Web page.
https://www.uschamber.com/issue-brief/telephoneconsumer-protection-act-tcpa.
 U.S. Chamber Institute for Legal Reform paper on
TCPA litigation:
http://www.instituteforlegalreform.com/resource/thejuggernaut-of-tcpa-litigation--the-problems-withuncapped-statutory-damages/
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Jason Goldman
Senior Telecommunications Policy Counsel and
Managing Director
[email protected]
202.463.5949
Visit our website at www.uschamber.com/etra
and
Follow us on Twitter @Regulations
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TCPA
THE POLITICS, THE PLAYERS,
AND THE PATH FORWARD
NOVEMBER 4, 2014
Privileged and Confidential
TCPA: Define the Debate for Education Vertical
• Today it’s “collectors versus student borrowers”, it needs to be
“student borrowers versus harmful regulation”
• If we can reach student borrowers, we can help them avoid default
and preserve their credit worthiness; it is important to the economy
that these emerging consumers are not financially crippled
• Block and tackle at the grassroots level by educating your
congressional representatives
• Use facts and data to dispel myths and redefine the debate
• Engage in Washington with the Administration and Federal agencies
Privileged and Confidential
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TCPA: The Politics
• Challenging… because it’s uncomfortable and does not
lend itself to public support.
• Radioactive… because some policymakers are
[successfully] exploiting the issue for electoral gain.
• Driven by anecdote… because too few people have the
data to assess whether what they are hearing in the
media and elsewhere is myth or fact.
Privileged and Confidential
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TCPA: The Politics
Bottom line: In a risk averse Congress, you are
asking policymakers to take a chance.
It is good policy to modify the TCPA but it is not
seen as good public relations… at least for the
moment.
Privileged and Confidential
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TCPA: The Players
• Congress: Balancing Policy and Politics
• Administration: Some For, Some Against
• NGOs: United in Message
• Media: The Everyman Perspective
Privileged and Confidential
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TCPA: The Players / Congress
Congress: Balancing Policy and Politics
• While they are concerned about backlash from consumer
groups, some members of Congress recognize the
importance of modifying TCPA and have communicated
with Administration officials through letters, phone calls
and the committee process.
Privileged and Confidential
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TCPA: The Players / The Administration
The Administration: Some For, Some Against
• Office of Management and Budget
– The president’s last three budget submissions have
included a TCPA modification proposal
• Federal Communications Commission
• Department of Treasury
• Department of Education’s Federal Student Aid Office
• Consumer Financial Protection Bureau
Privileged and Confidential
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TCPA: The Players / NGOs
NGOs: United in Message
• In April 2013, the National Consumer Law Center opened its
“Recommendations to the CFPB Regarding Debt Collection
Problems” with the following: “On a daily basis the attorneys with
whom we work assist consumers who have been victimized by unfair,
deceptive and abusive debt collection practices. The effects of
these debt collection abuses on people take a terrible toll: stress,
threats to employment, fear, lost or stolen funds from bank
accounts, frustration and the embarrassment. The raw emotional
toll from the constant and horrendous harassment by debt collectors
is simply appalling.”
• The Fact on TCPA: All existing consumer protections would remain in
place to safeguard consumers’ rights and privacy.
Privileged and Confidential
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TCPA: The Players / The Media
Media: “The Everyman Perspective”
•
•
•
•
Fact checking is marginal at best
Editorial and news pages blurred
It’s about speed and getting eyeballs
Bad news sells better than good news
Privileged and Confidential
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TCPA: The Players / The Media
• “The monthly payment burden faced by student loan borrowers
stayed about the same or even lessened between 1992 and 2010.”
[Beth Akers and Matthew M. Chingos, Brookings, “Student Loan Update: A
First Look at the 2013 Survey of Consumer Finances”, September 8, 2014]
• “The value of loans in default is a constant 9 percent of all
outstanding federal student loans in 2006, 2013 and 2014.”
[Jason Delisle, director of the Federal Education Budget Project at the
New America Foundation, “Was there a Student Loan Crisis in 2006?”,
October 1, 2014]
Privileged and Confidential
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TCPA: Why Engage?
New Members and Key Committee Leadership Expected in 2015
•
Senate HELP/House Education & Workforce Committees
– Tom Harkin (D-IA) retiring; Patty Murray (D-WA) likely successor
– George Miller (D-CA) retiring; Bobby Scott (D-VA) likely successor
•
Senate Banking/House Finance Committees
– Tim Johnson (D-SD) retiring; Sherrod Brown (D-OH) likely successor
– Either Richard Shelby (R-AL) or Mike Crapo (R-ID)
– Reps. Jeb Hensarling (R-TX) and Maxine Waters (D-CA) likely to remain
atop House Financial Services
•
Senate Commerce/House Energy & Commerce Committees
– Jay Rockefeller (D-WV) retiring; Bill Nelson (D-FL) likely successor
– Henry Waxman (D-CA) retiring; Frank Pallone (D-NJ) or Anna Eshoo (DCA) is likely successor
Privileged and Confidential
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TCPA: Why Engage?
• Public opinion matters
• Influence policy debate/development
• Be a resource for policymakers who are getting
conflicting information
• Talk about this issue in terms of financial
counseling for student borrowers
• Create a sense of urgency to act
Privileged and Confidential
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