Consumer-Side TCPA Comments Reviewed: CFPB Respectful, Consumer Action Aggressive, Cunningham and Moskowitz Taciturn in their Comments to FCC

With the FCC’s comment deadline now behind us–it was June 13, 2018–we here at TCPAland have begun the process of reviewing the comments submitted to the FCC to share whatever nuggets of wisdom we can glean.

The review process will take some time–there are quite a few comments–but we will break down the key comments on a daily basis over the next week or so.

Today we will consider the following consumer-side comments:

CFPB: I read this one with trembling hands. Would the CFPB attempt to dictate the scope of the TCPA to the FCC? Would it urge the FCC to take on a consumer friendly bend? Would it push for more enforcement, a broader reading of ATDS, or other “consumer-friendly” changes? Short answer to all of this: no. The CFPB’s brief comment–found here CFPB TCPA Comment – is deferential and respectful to the FCC. It notes that “[t]he Bureau supports the FCC’s effort in this rulemaking to seek comment on how to define ATDS under the TCPA and other issues that may affect whether and how collectors, servicers, and other consumer financial service providers communicate with consumers.” And while the CFPB’s comment also has a “stay in your lane” element–it loudly reminds the FCC that the Bureau has primary regulatory power over lenders– it is deferential to the Commission on all points raised in the Public Notice. The last line of the comment may suggest future collaboration between the FCC and the Bureau, however, which may  not be what industry wants to hear– “[the CFPB] looks forward to working with the FCC and others to develop standards for consumer financial service providers and others who communicate with consumers via telephone.” More to come on this.

Consumer Action: One of the boldest comments on the consumer side was submitted by Consumer Action. The organization urges the Commission to “recognize and enshrine that public enforcement alone is not sufficient to stem the rising tide of robocalls.” The Comment–found here Consumer Action Comment – specifically urges that consumers “must remain free to engage in both private and class action lawsuits against callers that fail to comply with the TCPA.” The Comment also urges the FCC to extend the TCPA to include predictive dialers and “click” dialers and to treat contractual consent as revocable. Lots of icky stuff.

Jeff Hansen: A frequent “expert” witness retained by the Plaintiff’s bar on ATDS issues. See his comment here – Hansen Comment. In Hansen’s view the FCC “has become confused about a simple software program.” His Comment repeatedly suggests that the Commission is “confused” or has “forgot” about its own rulings on the subject of whether a predictive dialer is an ATDS. While it is difficult to track some of his points, the core of his comment seems to be: “the FCC should stay away from the technicalities of how the system operates and stay with the basic function of an autodialer.” I think we can all agree on that point. Hansen also argues that all software systems have the ability to generate numbers so qualify as an ATDS–but isn’t that sort of thinking exactly why ACA Int’l overturned the Omnibus as overly broad in the first place? (Hint: yes.)

Greenwald Davidson: This TCPA Class litigation law firm submitted a fairly narrow comment that is worth reading. Drawing on purported examples from recent cases the firm has litigated–including a purported deposition question and answer from an anonymous deponent– the Comment argues that the FCC should reject the “reasonable reliance” approach to wrong numbers. Obviously class action attorneys detest any approach to the TCPA that looks at the reasonableness of a caller’s conduct–that creates individualized inquiries that defeat certification–so there should be no surprise that Greenwald Davidson focus their fire on this point. The comment also rather deftly argues that requiring random or sequential number generation as the hallmark of an ATDS would increase robocalls. The comment is here Greenwald Davidson.

Craig Cunningham and Craig Moskowitz:   These two famously submitted a petition last year seeking to destroy the FCC’s vaunted presumed consent doctrine. Their comment on the Public Notice–found here Craig Cunningham & Craig Moskowitz Comment— does not address that issue, however, and focuses solely on whether the government is a “person” for purposes of the TCPA.