TCPA TSUMANI?: Democrats Sweep to Power– Here Is What It May Mean for the TCPA

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Law Conference of Champions V ticket prices as I type: $519.00 (and rising.)

A ton of folks have asked me for my views on the election– I did recently run for Congress after all– and the truth is its all a little sad and I don’t really like to talk about it because we seem to be in something of a death spiral– swinging back and forth wildly between bad options until something gives… (or something breaks.)

Most voters don’t want democratic socialists any more than they want Trump’s failed nonsense but given the choice between the two they can’t stick with what they have. And so they held their noses and voted for a bunch of folks they probably won’t like much in a couple of years because they’re too extreme the other direction. So then we will have another nose-holding exercise back the other direction in 2-4 years and we’ll see an even further right wing group take power back. Just awful.

And on and on it will go until something really terrible happens because one side or the other simply gets tired of the pendulum swings and decides to put an end to it institutionally (or militarily).

Its easy to see coming but hard to stop.

I tried to put a stop to it. I failed.

Maybe somebody else will pick up the mantle and pull it off. Who knows.

Until then we will limp along with the system we have– and that means divided government for the next couple of years and a really nasty battle for the presidency in 2028 is on the table.

So what does that mean for the TCPA?

Well in truth it will be hard for Congress to get anything to get done the next couple of years– and maybe that’s a good thing.

Under the Constitution a bill can only become law if both chambers (house and senate) pass the bill and then the president signs it. If the president does not sign the bill it does not become law unless 2/3s of each chamber vote for it and override the veto.

While Congress is now controlled by the Democrats they do not possess a 2/3 majority in either chamber. So they cannot override a veto. Thus no laws get passed unless there is a deal with Trump of some kind.

We know the Democratic party is deeply tied in with the NCLC– the National Consumer Law Center– and the NCLC is constantly pushing for an expansion to the TCPA. It is VERY likely, therefore, that we will see legislative efforts percolating on the hill for an expansion of the statute. What is less clear is whether Trump will support the bill that emerges.

Trump has been pretty silent on TCPA issues during both terms in office. His administration has generally taken steps to make political robocalls easier–such as the ruling clarifying P2P messages were not ATDS back in 2017 on the heels of a lawsuit against his campaign related to unconsented messaging– but Trump himself has not taken a position on any TCPA-related issues.

In terms of what has already been floated there are several potential paths legislation could take:

  1. We have seen a recent push to expand express written consent rules to undermine lead generation and online webform submissions;
  2. The idea of expanding the ATDS definition to include all dialers that dial from a list is constantly lurking;
  3. The potential to expand the DNC rules to cover text messages and to remove the “residential” requirement has been floated several times; and
  4. Additional regulation related to AI voice calling disclosures and onshoring call center jobs have been frequently considered.

Any of these sorts of bills is possible (perhaps likely) to gain momentum in a heavily-Democratic Congress over the next two years. And any of these bills would massively expand the number of TCPA lawsuits. The question is whether the bill will die on Trump’s desk. Very tough to predict but it is at least possible Trump looks to “make a deal” and agree to a TCPA expansion that is party of a broader “Big Sort-of-Pretty Bill” that appeals to both sides.

That leans into the broader narrative of whether Trump will be willing to deal with the Democrats at all. Early indications are a “yes because he has to” but Trump has proven to be wildly unpredictable. So we’ll have to wait and see.

Importantly, despite the Democratic win in Congress Republicans will continue to control the FCC– the primary regulator that interprets TCPA provisions–so we do NOT expect to see the FCC turn tail and run from recent business-friendly TCPA rulings. Then again, if the Democrats do take the presidency in 2028 the TCPA world will likely face mass upheaval because an Democratic (read NCLC) lead FCC would be absolutely hellbent on expanding the statute as much as possible– and lead generation would be directly in its crosshairs. But that’s a 2029 problem.

Interestingly the single biggest impact of the election on the TCPAWorld will be with the makeup of the judiciary. You can expect Trump to be printing “midnight judges” between now and when the next Congress is seated on January 3, 2027. Stacking the federal judiciary with conservative judges will be a major initiative for trump in the brief 45 day working window this Congress has left. And the newly-appointed judges will have tremendous discretionary power to whittle down the TCPA over the next few years.

Despite controlling the next Congress the Democrats can essentially do nothing to stop Trump from printing judges (and I am not picking on Trump here– Biden did the same thing 4 yeas ago) and they won’t get their chance to have a counter wave of liberal justices unless and until they win the presidency in 2028.

So that means we will have a judiciary skewing conservative along with a business-friendly FCC for the foreseeable future. That should be a good thing for callers facing frivolous TCPA suits, but you never know because nobody likes unwanted robocalls– and judges will often find a way to expand the TCPA to prevent calls regardless of their political affiliation.

Overall, therefore, we need to be watchful of legislative developments but we do not expect to see a massive immediate shift in the TCPA landscape following this election due to the structural limitations that prevent the Democrats from easily impacting existing law.

Hope this was helpful to everyone!

And I know Law Conference of Champions V will be helpful for everyone! 2 full days of the best-informed TCPA, data privacy and Ai reg discussion on the planet. Super cheap (for now) tickets are going for just $519.00– but prices rise daily so don’t wait!

Chat soon.

 

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Published by Eric "Czar" 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.

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