“Hello…it’s me. [Please don’t sue me!]” Examining the FCC’s Overbroad Calling Regulations Under the TCPA

Authors

Marissa A. Potts

Abstract

Americans have received unwanted telemarketing calls for decades. In response to a rapid increase in pre-recorded calls made using autodialer devices, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1992. The TCPA imposes restrictions on calls made to consumers’ residences and wireless phones using autodialer devices, even if they are not telemarketing calls. Congress appointed the Federal Communications Commission (FCC) to prescribe rules and regulations to enforce the TCPA. In 2015, the FCC released an order that defined autodialer more broadly under the statute. Consequently, devices that have the potential to become autodialers in the future, even if they are not presently able to perform autodialer functions, will constitute autodialers for purposes of the TCPA. This new scope of autodialers includes everyday technology, such as smartphones, that consumers and businesses use on a regular basis. As a result, the FCC has unreasonably broadened the scope of the TCPA to limit the use of everyday technology. This note examines the new autodialer definition and argues that it is problematic for several reasons. The new autodialer definition does not comport with a plain reading of the TCPA, Congressional intent, or recent federal case law. Furthermore, this note predicts that the broader autodialer definition will have two detrimental effects—it will shift TCPA enforcement efforts away from purposeful, predatory TCPA violators and will increase TCPA litigation against companies engaged in legitimate business or between individual consumers. This note also examines recent trends in TCPA class action suits, including financial incentives for plaintiff attorneys to pursue TCPA lawsuits. Ultimately, the FCC should reinterpret the statute so that autodialers only include devices with the present ability to perform autodialer functions and should further require service providers, such as AT&T and Verizon, to offer consumers a more widespread call blocking service to help protect them from predatory robocalls

Recommended Citation

Marissa A. Potts, “Hello…it’s me. [Please don’t sue me!]” Examining the FCC’s Overbroad Calling Regulations Under the TCPA, 82 Brook. L. Rev. (2016).
Available at: https://brooklynworks.brooklaw.edu/blr/vol82/iss1/7