Collector - August 2018 - 40
Looking for Clarity
Well-reasoned, workable rules for modern communication preferences would benefit consumers.
By Leah Dempsey
onsumer protection is finally at
the forefront for federal lawmakers
tasked with creating policies
for communicating with consumers
on their cell phones, and I am hopeful
that common-sense regulation is not
far behind. There is no question that
consumers are best protected when the
credit and collection industry, and all
other industries, have clear and workable
rules associated with communications.
Unfortunately, many rules for this
type of communication are muddied, or
outdated, such as the Telephone Consumer
Protection Act, which was enacted in
1991 long before many modern forms of
communication were used. This has led
to confusion coupled with liability for
legitimate businesses seeking to engage
in much-needed communications, while
often overlooking bad actors using new
technologies to harass or scam consumers.
The Federal Communications
Commission's recent efforts to address
bad actors are critical to creating the best
possible environment for consumers. Over
the past several months, the FCC has taken
the lead in addressing a serious problem for
consumers: illegal and fraudulent robocalls.
In May, the FCC levied the largest fine
ever for this type of illegal behavior against
a Florida resident who made 90 million
illegally spoofed robocalls.
Meanwhile, the Senate Commerce,
Science and Transportation Committee
and the House Energy and Commerce
Committee held hearings addressing certain
illicit communications with consumers.
"Illegal robocalls are more than just a
frustrating invasion of privacy, as callers
frequently use fraud and deception to
pitch their goods and services, leading to
significant consumer harm," Lois Greisman,
a Federal Trade Commission official, stated
in her testimony before the Senate. "They
also are often used by criminal imposters
posing as trusted officials or companies."
Additionally, however, reasonable and
clear guidance as to what is required under
the TCPA is also critical for safe, efficient
and effective telecommunications for the
millions of legitimate businesses who need
to contact consumers. Rather than having
a laser focus on harmful communications,
some FCC actions have stopped legitimate
businesses from communicating with
consumers who have given consent, and
often want and need, to be contacted.
Instead of focusing on bad actors, in 2015
the FCC issued an Omnibus and Declaratory
Ruling and Order on the TCPA that created
tremendous uncertainty and liability for
highly regulated and legitimate businesses
making informational calls to cell phones or
sending text messages.
In addition to the accounts receivable
management industry, which was stymied
from providing pertinent and needed
information, many other industries were
also sent into disarray about compliance and
the ability to communicate as a result of this
ruling. This included community financial
institutions, utility providers and groups
promoting home ownership by providing
mortgages, just to name a few of the dozens
of impacted industries.
On behalf of its members, ACA
International responded to this unreasonable
ruling by challenging it in the lawsuit,
ACA Int'l v. FCC. It is ACA's position-and
the court agreed-that in 2015, the FCC
took such extreme liberties in interpreting
the TCPA that it created a world where
something such as an iPhone could be
considered an "autodialer."
Many businesses and financial institutions
had no idea if the calling device they were
using could be considered an autodialer,
which meant it was unclear if callers were
potentially liable for the exorbitant amount
of damages associated with TCPA litigation.
Moreover, aspects of the ruling made
the unreasonable assumption that a caller
should be on notice that a person's number
had been reassigned, even if they only
made one call to that consumer that was
not even answered.
After ACA and nearly two dozen other
industries highlighted the preposterous
overreach and lack of clarity stemming
from the FCC's 2015 ruling, and the harm
it caused consumers in their ability to