The Senate Takes a Close Look at the TCPA

Republicans and Democrats on Capitol Hill held a passionate debate about “robocalls” on Wednesday, during a hearing about the effectiveness of the Telephone Consumer Protection Act (TCPA). We predicted that it would be “fascinating,” and it certainly turned out that way.

At the Senate Commerce Committee’s “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business” hearing, lawmakers looked at how the TCPA’s current restrictions on automatic dialing systems impact consumers at home and the bottom line for businesses, and heard testimony from a range of expert witnesses on the topic.

South Dakota Senator John Thune, chairman of the Senate Commerce Committee, argued for a “balanced solution” that recognizes that unwanted calls are a problem for consumers and also that the TCPA is unduly burdensome on businesses. Senator Thune says that Congress should do what it can to prevent harassment through robocalls, but that companies shouldn’t be subjected to frivolous lawsuits over a single phone call. Other Republicans on the committee also argued in favor of an approach that balances the concerns of consumers and businesses.

Several of the expert witnesses testified that the TCPA is too difficult for businesses to fully comply with, and that changes ought to be made to the law. Rich Lovitch, representing the American Association of Healthcare Administration Management, made the case that that the TCPA adds unnecessary expenses and forces hospitals to sometimes take away from patient care in order to allocate resources for TCPA compliance. Additionally, Lovitch argued that consumers are already protected from harassing robocalls by anti-telemarketing litigation, and that the TCPA is being taken advantage of by some lawyers. Monica Desai of Squire Patton Briggs said that small businesses often can’t afford TCPA compliance, and that the law has not evolved with modern technology. Becca Wahlquist, representing the U.S. Chamber of Legal Reform, argued that the main problem for businesses is excessive TCPA-based class action cases.

Democrats like Senator Claire McCaskill of Missouri were unsympathetic to the concerns of businesses, referring to robocalls as “the biggest issue for consumers in the country” and saying that businesses should stop “whining” about the law. Other Democrats on the committee said that the cost to consumers if Congress makes it easier to use automated dialing systems would far outweigh any possible benefit. Democrats further argued that businesses should just take care to ensure that they obtain consent from consumers, rather than ask for changes to the law.

Several other expert witnesses sided more clearly with the Democrats, such as Margot Saunders from the National Consumer Law Center. Saunders argued that the TCPA should be stricter than it is currently, and that there is no reason that businesses can’t manually call consumers in order to obtain consent. Indiana Attorney General Greg Zoeller said that the vast majority of complaints his office receives are about unwanted calls, but that many of those calls come from overseas, outside Congress’s jurisdiction. Zoeller showed some sympathy towards the concerns of businesses, but also said that businesses should concern themselves with obtaining consent from consumers before placing any calls, warning consumers in his state that in his view, a robocall is almost always a scam.

insideARM Perspective

It’s not clear yet what will happen in Congress regarding TCPA reform, but Senator Thune’s call for a “balanced solution” seems like a positive sign for the industry. The chairman indicated during his closing remarks that he thinks they found common ground during Wednesday’s hearing, and that hopefully Congress can agree on some solutions that address the concerns of consumers and businesses.