FCC Has Role To Play in Curbing TCPA-Related Lawsuits, Industry Officials Say

Wheeler said during the meeting that no one should complain to the FCC about TCPA-related lawsuits. “We’ve heard a lot about class-action lawsuits,” Wheeler said. “If there is a problem in this regard the proper forum for resolution is the Congress, not the FCC. The Congress explicitly gave consumers a private right of action to sue … those who violate TCPA.”

Commissioner Ajit Pai in particular complained in his oral comments on TCPA at Thursday’s meeting (see 1506180046) about the growing number of TCPA-related lawsuits. The FCC so far has posted only a news release on the steps it took on TCPA and commissioner statements from the meeting. Pai said he would submit a longer written statement. The order and declaratory ruling are expected to be released this week by the FCC, commission officials said Friday. Officials said not all of the TCPA petitions filed at the FCC were addressed. For example, a petition by the American Gas Association and Edison Electric Institute seeking clarity about calls to utility customers was filed too late to be addressed in the item.

“As I speak to a wide variety​ of members of the bar regarding the FCC's changes to the implementation of the TCPA, the nearly unanimous consensus is that the new construct will generate much more litigation,” former FCC Commissioner Robert McDowell, now at Wiley Rein, said Friday. “Congress could fix that, but it is the FCC that has opened the lawsuit flood gates even wider than before. It could be argued that was not Congress's intent."

Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation, disputed Wheeler’s comments. “Of course the FCC has a role to play in curbing, or accelerating, lawsuits against legitimate uses of automatic dialing technology,” Brake said Friday. “Class-action suits are clearly authorized under the TCPA, but it’s just as clear that the FCC could have and should have done more to close loopholes and clarify ambiguities that creative plaintiff’s lawyers have driven open. To say otherwise is disingenuous.”

The U.S. Chamber of Commerce criticized the FCC’s actions on TCPA. The steps the FCC took “will accelerate the growth of abusive and costly class action lawsuits against businesses under the TCPA by further loosening the standards for filing them,” the Chamber said. “We are disappointed that the FCC has not addressed concerns raised by the business community that its actions will worsen this trend and likely lead to increased costs for consumers.” Consumers Union supported the order. “Americans have had enough with robocalls that ring off the hook all day long, and often target them with the latest scams,” the group said in a news release.

Public Knowledge Senior Vice President Harold Feld defended Wheeler and criticized Pai. “Congress created the private right of action,” Feld said Friday. “All the horror stories Pai recounted are based on the existing law and have nothing whatsoever to do with the changes made by the FCC. That's what makes this so utterly ridiculous.” Feld said the item hasn’t been released so it's unclear how the FCC actions affect the status quo on class-action lawsuits. “It's not like the FCC created a private right of action; it exists in the statute,” he said. “If people don't like consumers enforcing their rights, tell Congress to take the right to file a lawsuit away from them.” The FCC had no comment beyond what Wheeler said Thursday.