To call Mark Dobronski a frequent critic of the Czar would be to put it mildly.
Gadfly? Perhaps.
Troll? Sounds about right.
Regardless, Dobronski has filed a recent petition to the FCC seeking clarification and it is actually pretty well drafted and thoughtful.
The issue raised in the petition–which you can read here Request for Delcaratory Ruling –is a request to the Commission to clarify which sections of the CFR were promulgated under which sections of the TCPA.
Now this may not sound particularly interesting but it is actually very impactful.
The TCPA contains three primary provisions impacting callers–those under 227(b), 227(c) and the rarely-discussed 227(d). Each of these provisions cover different categories of conduct:
- 227(b) governs calls made using regulated technology.
- 227(c) governs calls to numbers on the DNC.
- 227(d) governs the content of calls generally.
Importantly, each of these provisions are treated differently when it comes to private rights of action–i.e. the ability of people to sue under the TCPA.
Violation of 227(b) carries an automatic $500-$1,500.00 penalty, with no good faith defense.
Violation of 227(c) carries a penalty of “up to $500-$1,500.00, but a caller can avoid liability by demonstrating a good faith compliance effort.
Violation of 227(d) carries no private right of action at all–this provision is enforceable by regulators only and cannot be the basis of a class action lawsuit.
Ok. Cool. Fine. Whatever. Why does it matter?
Well the FCC has implemented various rules to enforce the TCPA in something called the Code of Federal Regulations (CFR), and depending which section of the TCPA the CFR provisions were implemented under a violation of a CFR provision may or may not carry a private right of action.
For instance CFR–and not the TCPA itself– requires telemarketer to disclose their identities in a phone call. But was the requirement implemented under 227(d) (governing content of calls) or 227(c) (governing DNC rules.) While it might seem like 227(d) is the correct answer, there’s an argument to be made–and Dobronski and others have made it–that the disclosure requirement is designed to allow consumers to know who is calling the so as to enforce DNC rules. So perhaps 227(c) was the section the FCC was using.
The problem, remarkably, is that the FCC has promulgated a huge number of regulations implementing the TCPA and–with rare exception–never specifically stated which regulation was promulgated under which section of the TCPA.
Eesh.
A handful of the CFR sections are pretty self-explanatory. 64.1200(b) was promulgated under 227(d). 64.1200(c)–most of it at least–was under 227(c). But the rest of the CFR–and the catalog of rich TCPA lawsuits its provisions may empower–remain up for grabs.
Dobronski’s petition asks the FCC to think all of this through and inform everyone, once and for all, which provisions are promulgated under which TCPA provision–i.e. which CFR sections enable private suit, and which do not.
And to be honest–the Czar agrees.
It sure would be nice to know which of these provisions permit lawsuits and which do not. That certainly cut down the number of times the parties have to file motions on the issue and would also help to inform businesses fearing trumped up “gotcha” lawsuits where they ought to devote resources.
So far the FCC has not take any action on the petition. We will let everyone know if that changes.