In an expansive speech before ACA International – yes, the ACA International of ACA Int’l v. FCC fame – Commissioner O’Rielly stated emphatically that “[n]ow, more than ever, it’s crucial that we get the rulemaking done, and ensure that honest business can call their customers without being threatened by bankruptcy.” He stressed throughout the speech that the FCC needs to act now to protect legitimate businesses placing legitimate calls from harassing and abusive lawsuits.
But Commissioner O’Rielly did not place all of the onus for failing to act on the FCC. Instead, he made it clear to the ACA membership that “the onus is on you and others to raise awareness of the need for corrective actions to a much, much greater extent.” He also stressed the need for multiple industries to work together to secure meaningful TCPA reform, particularly in the face of misinformation campaigns.
Enter the Czar. Commissioner O’Rielly referenced John Oliver’s “statistics” on the explosion of robocalls, but then cites the Czar’s fact-check of Oliver’s hilarious-but-inaccurate bit. The point of both examples was to show the utter ineffectiveness of private litigation in stemming the tide of true robocalls. Commissioner O’Rielly’s point is well taken. With both true robocalls and TCPA litigation exploding, vexatious and predatory private litigation is plainly not the answer.
Commissioner O’Rielly thus picked up on a theme regular readers of TCPAWorld will find familiar: that the people responsible for the scourge of true robocalls are not legitimate American businesses. Not. At All. Instead, the people behind them are shady, offshore scam artists (my words, not his). But shady, offshore scam artists are offshore. And they rarely have US assets.
Offshore location + no US assets = disinterested plaintiffs’ attorneys.
So the scourge of TCPA litigation does nothing to reduce the scourge of true robocalls. How should the TCPA be reformed to stop this insanity? Commissioner O’Rielly offered a few insights.
The definition of an ATDS is obviously front-and-center in the minds of TCPAWorld readers. To that end, Commissioner O’Rielly stated that “[i]t’s a sad truth that case law has interpreted ATDS so broadly and unpredictably that practically all modern dialing and texting technologies face the threat of legal sanction, even those that take absolutely no part in random or sequential number generation.” That is a strong indication that he believes the TCPA should mean what it says, and it plainly says that a random or sequential number generator is required. Shady scam artists, not legitimate companies placing legitimate calls, rely on random and sequential number generators.
Another TCPAWorld minefield is what, exactly, constitutes an “advertisement.” Although Commissioner O’Rielly did not offer specifics, he stated that “[g]iven the hodgepodge of judicial opinions on this issue, it’s obvious that courts need more guidance.” Members of the industry certainly agree with that.
Commissioner O’Rielly also touched on two topics that receive far less attention than the definition of an ATDS but are nevertheless important for TCPAWorld. The first relates to standards for revocation of consent. He noted that even though the D.C. Circuit left the FCC’s 2015 guidance on revocation of consent in place, the FCC should nevertheless “adopt clear rules of the road.” Doing so would certainly be a welcome sign, as the 2015 FCC Order is anything but clear. Next, he mentioned several petitions that seek exemptions from the express-consent requirement for certain informational texts and calls that provide valuable information to the recipients.
Commissioner O’Rielly’s views are a welcome sign for any entities placing legitimate phone calls and are a sign that the TCPA is at the forefront of the FCC’s agenda. Hopefully the full Commission will act soon, and we can put some of this madness behind us.