ITS OFFICIAL: R.E.A.C.H. Board Votes Unanimously NOT to Challenge FCC’s One-to-One Ruling

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So the R.E.A.C.H. board members gathered for a historic vote today.

Representatives of the board include large scale lead sellers and buyers, vendors, platforms, call center operators and carriers.

It is truly a representative cross-section of this industry and all who dwell within it.

It is a diverse and thoughtful board full of people who truly care about doing what is best for this industry.

And I am absolutely honored to be a part of it.

The board gathered today to discuss a potential challenge to the FCC’s ruling on one-to-one consent–the so-called “lead generator loophole” ruling.

Back in November I would have told you that R.E.A.C.H. was almost certain to challenge the ruling.

But a few things changed since then.

Most importantly the FCC showed it was willing to listen.

Rather than just shove the ruling down all of our throats the Commission backed off a smidge in the face of opposition from the Small Business Administration pursuant to R.E.A.C.H.’s efforts, opening the door for further discussion. The Commission extended the application of the rule from 6 months to 12 months. And most importantly it re-opened the comment period to allow small businesses to weigh in on the potential impact of the ruling in the hopes that further modifications dampening its potentially devastating impact might be found and implemented.

These are important changes and it signals to me and to the board of R.E.A.C.H. that the Commission is earnestly looking for solutions and is willing to listen, be educated, and make needed adjustments to protect the tens of thousands of small businesses that will be impacted by this ruling.

Moreover, R.E.A.C.H. is firmly dedicated to stopping unwanted calls and protecting consumers. And while we disagree with the FCC’s approach in adopting a strict one-to-one requirement–which is inconsistent with existing law and unfounded based on the record–we nevertheless agree that it is a step toward stopping unwanted calls. Directionally, therefore, the ruling furthers the mission of R.E.A.C.H. and for that reason–as much as any other– we have elected not to challenge it.

From a practical standpoint, R.E.A.C.H. board members also recognized that prevailing on the challenge was a coinflip at best. The Commission was able to strengthen its record following an ill-timed ex parte meaning that the odds of success here have dropped significantly since November. While viable paths to challenge the ruling still exist, the chances of success on the critical “inconsistent with reasoned rulemaking” test have, indeed, plummeted.

On balance, therefore, R.E.A.C.H. views this as an opportunity to continue to work collaboratively with the FCC and to reward the Commission’s thoughtfulness in re-opening the public notice and in pledging to work to engage with small business by NOT challenging the ruling in court.

That being said, I do wish others well on any challenge they may pursue–hitting back at government overreach and arbitrary and capricious rulemaking spurred by the self-interest of special interest groups like the NCLC is critical–and I will provide any assistance/thoughts/collaboration requested of me. But I voted along with the rest of the board to keep R.E.A.C.H. out of that fray–it is not the proper fight for an organization committed to working with regulators to clean up the industry.

I would like to thank every board member for their dedicated consideration of this important issue. The thoughtfulness demonstrated in our discussion today was profound and consistent with the enormity of the decision to be made. You should know that this a very special group of people who really take these matters seriously. And I am grateful for all of them.

That being said, the views in this blog post are mine and mine alone. I do not speak for any other member or R.E.A.C.H. itself here. I expect the R.E.A.C.H. executive board will issue its own statement shortly.

And for what its worth, Puja came into my office following the meeting and said: “I would have challenged.”

hahaha.

So it goes. Happy weekend all.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  2. Hey, Troutman, I’d love to see REACH challenge the FCC’s ruling. Your members can pony up a bunch of cash to put in your pocket, and in the end, the result will likely not change. But, the fact is that the FCC was “RIGHT ON!” with its ruling. Have no fear, American consumers will have input into the Further NPRM, too.

    Reply

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