EDITOR’S NOTE: I rarely post on the weekends, but this is pretty important stuff. Share as you believe appropriate.
I know there’s a lot of noise out there about Congress swiftly cooking up a response to Facebook. But I don’t see it happening folks–especially if industry actors behave themselves.
I’ll explain why that is in a bit, but first lets take a moment to recognize that businesses that rely on consumer outreach to survive have been handed a great gift.
For too long you have been assaulted by mostly meritless “gotcha” lawsuits by predatory plaintiff’s attorneys seeking to exploit the TCPA’s “strict liability” nature. And unlike the poorly-received waves of low-dollar predatory lawsuits American businesses have endured in the past–think ADA suits–the TCPA litigation explosion was mostly welcomed by the Courts, and the massive statutory damages afforded by the statute posed an existential risk to many companies.
Facebook changes all of that. No longer can legitimate American businesses face the risk of being forced into BK by manufactured lawsuits stemming out of the use of effective modern dialing technology to contact their own customers. No longer can one wrong number phone call set up a class action lawsuit that threatens to end a family business. No longer will a corporate CEO wonder if she or he will lose their personal home because a sales agent fat-fingered a single phone number into a CRM. No longer will one missed “do not call” request to a branch employee threaten to cripple an entire national brand with a billion dollar lawsuit. Those days are gone.
And everyone should be happy about that.
But what industry does next will determine whether a hotly-divided and distracted Congress will be forced into unified action, or not.
Can the dream of self-regulation and adherence to industry-derived best practices awaken to a reality of the wholesale adoption of consumer-friendly outreach, without the Sword of Damocles dangling over anyone’s head? I really hope so. And I really believe this is everyone’s opportunity to find out.
I want industry to prove it can regulate itself. That the government can and should stay out of the business of regulating speech, and allow private sector actors to self-police. And I really believe Congress is going to give American businesses the chance to prove itself worthy of operating under the honor system.
Yes, I know that certain segments of Congress have already pledged swift response to the Facebook ruling. But that was over-eager sentiment at best. As anyone will tell you, the dust hasn’t settled on Facebook just yet and the legal effect of the ruling is far from clear. Moving to legislate around the ruling at this stage is simply foolhardy.
It is important to understand that any legislative “fix” to Facebook will not be like TRACED. TRACED had to happen. Americans were being crushed by mostly-spoofed spam calls. The cupboard was empty to battle these calls (which were not adequately addressed by the TCPA.) Plus the FCC needed express Congressional authority to implement STIR/SHAKEN–by far the single most important tool to prevent illegal and spoofed calls from reaching our handset.
Unsurprisingly, TRACED passed with near unanimous approval in both houses of Congress. But it is what TRACED didn’t contain that is the most instructive with respect to Facebook.
A small segment of Congressional Democrats had been pushing for a substantive expansion of the TCPA for some time. An early edition of the so-called “Stopping Bad Robocalls” Act (going all the way back to 2017) would have expressly expanded the TCPA to cover dialers that call from lists of numbers. But the version that eventually passed the Democratically-controlled House in 2019 dropped that provision altogether. Instead the bill would only have required the FCC to adopt an interpretation of the ATDS definition within months. Eventually, of course, Stopping Bad Robocalls ran into a buzzsaw in the Republican-controlled Senate and virtually none of the provisions of the House bill became law when TRACED passed.
Translation: even in 2018/9 when robocalls were absolutely destroying America the Democrats could not pass a bill expanding the reach of the TCPA’s ATDS definition in the lower chamber of Congress where they had a massive majority.
There’s a reason for that–legislating speech is an extremely difficult thing to do in this nation (and for good reason.) Moving to expand a statute that covers speech triggers a host of Constitutional concerns, which is precisely why the TCPA was originally drafted so narrowly to begin with.
And if Democrats couldn’t expand the TCPA back in 2019 there is little reason to think they can (or will even want to) get it done now. Things have changed on the robocall front dramatically since 2019, really watering down the need for further Congressional action. Former Chairman Pai’s FCC focused on technological tools to thwart the robocall epidemic–giving carriers the power to block unwanted calls from their network users–and TRACED empowered the Industry Traced Back group to effectively track bad robocalls to their source and shut them down.
These were extremely powerful tools that have had a massive impact in thwarting unwanted calls. Indeed, as I discussed with then-Commissioner O’Reilly in a podcast interview last year, the hard work of the FCC and the ITG netted an initial 50% reduction in unwanted robocalls.
While “robocall” numbers have nominally crept up since, a review of the robocall index confirms that most of the uptick is now attributable to legitimate alert messages as consumers shift to desiring communications by text messages. Critically, the percentage of scam messages being received by American consumers continues to drop as effective call-blocking algorithms and real-time monitoring by private sector actors (like Hiya and YouMail) work to protect our handsets.
Now I am not suggesting that the robocall problem is solved in this Nation. But I am suggesting that things have changed on the ground and folks are far more aware of the effectiveness of technological tools to combat robocalls then they were two years ago. And it is also crystal clear that the FCC’s experiment with an extremely broad TCPA back in 2015 did absolutely nothing to stop robocalls– the volume of such calls quadrupled following the ruling. So there is zero empirical support for the idea that the TCPA effectively combats robocalls.
Plus, the Supreme Court’s ruling in AAPC–which was largely a reprehensible tear down of some of our most-cherished First Amendment principles–emphasized that any broad restrictions on speech cannot come with content-specific carve outs. If Congress does Act to expand the TCPA, therefore, it will have to do so in a way that covers all speech equally–including the use of technology that members of Congress use to communicate with their own constituents.
And then there’s the political reality in Washington right now. The Democrats are focused on major agenda items attendant the new administration, with a watered-down majority in the House and shoe-string control of the Senate. How much political capital will be spent expanding a statute that has no real impact on a mostly-resolved problem, and which will serve to prevent political communications during the next heated political campaign season?
You put all of this together, and I really do not see any imminent Congressional action here.
As I told LeadsCouncil last week all of this will change in a hurry if industry does not behave itself. I expect that Congress–and even state legislatures–will allow legitimate American business a little rope here (goodness knows they’ve suffered long enough without it) but if marketers/collectors/servicers/charitable organizations/healthcare organizations, etc. fail to come together and push out (and adhere to) best practices that assure consumer contact-preferences are adhered to then that rope will have just been used to hang themselves.
Let me put it as plainly as I can: industry has a real opportunity right now to prove that they’re the good guys I’ve been saying they are all along. To prove they can self-regulate and keep the legislatures out of the business of regulating speech.
If industry participants can come together and act responsibly, I see little chance of immediate legislative response to Facebook and everyone can breathe a little telecommunications fresh air.
But if not… you’ll only have yourselves to blame when the other shoe drops. And trust me– the consequences this time are likely to be exceptionally dire.
There will be a bill soon. The TCPA trial lawyers are already drafting the bill. I can see Todd Friedman and Sergei Lemberg working over time this weekend and staying up late. The congress is already working on the Anti Spoofing Penalties Modernization Act. I would say by the Fall session you might see some movement and possible passage.