FCC: Groups Join Together to Request FCC Address the Pending Petitions Concerning the TCPA

In a joint letter to the FCC, over twenty five trade groups and organizations requested the FCC address the numerous petitions pending before it concerning the TCPA.  To date, there are at least ten pending petitions requesting clarification as to what constitutes prior express consent and seven requesting clarification as to what constitutes an automated telephone dialing system or "ATDS".  Several of the petitions have been pending for a year or more. 

The TCPA was adopted in 1991 to address the issue of unwanted telephone marketing calls and faxes.  Since its adoption, technology has made vast improvements.  Whereas the minority of the population had cell phones in 1991, the vast majority of the population have cell phones now.  Cell phones, in short, are no longer a luxury but are now a necessity.  Other communication technologies have likewise advanced.  This collision of technology with a twenty five year old statute has created a conflict which has in recent years led to an astronomical increase in TCPA litigation. As a result, a variety of businesses and trade groups have filed petitions seeking clarification and modernization of the implementation of the TCPA.

On a number of occasions, the FCC itself has acknowledged that there is a need for clarity.  As noted by FCC Commissions Michael O'Rielly in March of last year, "the problems caused by this lack of clarity are evidenced by an increasing number of TCPA-related law suits and a growing backlog of petitions pending at the FCC.  According to data cited by the U.S. Chamber of Commerce in its recent comments, TCPA lawsuits have increased 30 percent over the last year.  Meanwhile, there are several dozen petitions asking the FCC to declare or clarify that a particular service or method of communicating would comply with the TCPA.  It is very troubling that legitimate companies feel they have to ask the government for its blessing every time they need to make a business decision in order to avoid litigation."  TCPA: It is Time to Provide Clarity (www.fcc.gov/blog/tcpa-it-is-time-provide-clarity). 

Monday's joint letter indicates the increasing level of frustration by a variety of business sectors with the FCC's delay in responding to the pending petitions and highlights the need for clarification.  "By addressing the important issues raised in the pending TCPA-related petitions, the Commission can help curtail abusive lawsuits...provide American businesses with desperately needed certainty and insure that businesses maintain the ability to communicate in an efficient manner that best meets the demands of their customers."  Included among the signatories were the ACA International, the American Insurance Association, the Consumers Bankers Association, the National Association of Chain Drug Stores, the U.S. Chamber of Commerce and a number of State Creditor Bar Associations.