May 4, 2017 was Star Wars Day (“May the Fourth . . .”), but it also marked the date of FCC Commissioner Michael O’Rielly’s speech to the ACA International Washington Insights Conference. Commissioner O’Rielly opened with a joke about the number of times ACA had to call him before he had the opportunity to accept its speaking invitation, and then moved on to discuss a number of ways in which he feels the TCPA has been expanded beyond the intended scope of the statute. O’Rielly cited ACA research showing that between 2010 and 2015 there was a 948 percent increase in litigants involved in TCPA-related lawsuits, but noted that “despite this, there is reason for optimism” with the change in FCC leadership.
According to the Commissioner, with “new leadership at the Commission and a new Bureau head overseeing TCPA, we have the chance to undo the misguided and harmful TCPA decisions of the past that exposed legitimate companies to massive legal liability without actually protecting consumers.” O’Rielly also mentioned the D.C. Circuit’s recent holding that the TCPA did not give the FCC authority to require opt-out notice on solicited faxes (which we covered here and here) as evidence that the tide may be turning against the expansion of TCPA litigation.
The remainder of Commissioner O’Rielly’s speech was dedicated to making three points. First, he stressed his belief in the importance of enabling legitimate businesses to make informational and telemarketing calls. While O’Rielly acknowledged that the FCC has granted relief from overly harsh applications of its TCPA rules in certain circumstances, he noted that each time, the “prior Commission” had granted the narrowest possible relief. He also expressed frustration that the FCC’s Budget Act implementing rules on government debt calls placed a number of restrictions on this category of exempted calls, such as limiting them to only three calls to a consumer. O’Rielly concluded that the FCC “need[s] to make broader changes to the rules to ensure that all consumers are able to get relevant and timely information.”
The Commissioner’s next point was that legitimate callers should be able to make calls in an efficient manner. O’Rielly characterized the idea that callers can avoid liability by simply eschewing use of an autodialer as “ludicrous.” He explained that the FCC’s definition of autodialer to include even smartphones meant that callers are denied good calling options, and may forgo placing calls altogether. He observed that the FCC’s rules should not preclude government agencies or companies from using third party contractors to place calls, and further, with respect to texting programs, FCC rules should specify the particular “stop” commands that companies must ensure are recognized by their automated systems, rather than simply demanding that companies develop the capabilities to accommodate any and all consumer expressions of a wish to discontinue the texts, such as DECLINE or LEAVE ME ALONE.
Commissioner O’Rielly’s final point was that the FCC should focus its enforcement resources on actual harms and real bad actors. Instead of expending time and effort on inadvertent technical violations of FCC rules, O’Rielly underscored his belief that the FCC should focus enforcement efforts on callers that engage in abusive calling practices, including overseas call centers.
O’Rielly closed with a prediction that any effort to address overbearing FCC rules would be “met with hysterical claims about the harms that will come to consumers,” and that it is therefore important for companies to straightforwardly communicate to consumers the steps that they take to ensure that consumer preferences are honored.
Exactly how and when the Commissioner’s views on matters of TCPA interpretations will be translated into FCC actions will depend upon many things, including, as Commissioner O’Rielly himself acknowledged, whether the FCC will be thrown back into a review process if the D. C. Circuit overturns aspects of the FCC’s 2015 Omnibus Order on appeal. It is plain, however, that what had been the minority view about resolving thorny TCPA issues at the FCC is now mainstream and those who have been waiting for a more practical approach to TCPA interpretation and enforcement have reason for optimism.