Until Congress Updates TCPA Law, Phones Will Keep Ringing

Phones will keep ringing until Congress updates TCPA law

TCPA law is booming as robocalls increase

Peggy Daley

The exploding volume of robocalls isn’t just blowing up your cell phone—it’s filling up court dockets, creating a growing problem for marketers and debt collectors. 

Congress passed the Telephone Consumer Protection Act (TCPA) in 1991, creating a national do-not-call list to protect Americans from harassing telemarketers, bill collectors and political campaigns. So what went wrong? The act didn’t anticipate the age of the mobile phone, though it was only a few years away—someone in Finland sent the first text message between texting-enabled phones in 1993, and Motorola introduced the StarTAC flip phone in 1996—rendering it incapable of regulating the world we live in today. Today, instead of curbing robocalls, the TCPA mainly just foments lawsuits and provides an illustration for how the breakneck pace of disruption can drive a well-intended law into near obsolescence in just a few years. 

Uptick in TCPA violations—and TCPA litigation

Marketers, political campaigns, debt collectors, scammers and others placed about 3.4 billion automated calls in April alone, estimates YouMail, a California-based caller-ID company. About 100,000 wireless numbers are reassigned by carriers every day, according to the US Federal Communications Commission. More than a quarter of numbers change hands each year overall, and the rate doubles within populations such as prepaid phone users and low-income users, according to the Pew Research Center. While the TCPA hasn’t been able to curb automated calling, it has certainly provided a legal cudgel for outraged Americans. Consumers filed 4,860 TCPA cases in 2016 compared with 16 cases in 2008, according to 2017 data from WebRecon LLC. 

Congress gave teeth to the act’s deterrence in 1991, the year the first digital cell phones became available and during which global cell users had yet to crack 10 million. The penalties—at least $500 per call in violation of the act—can be astronomical and a huge enticement to plaintiffs’ lawyers when cases regularly involve millions of plaintiffs.

At the same time, the proliferation of mobile computing has opened the door for businesses of just about any size, in any industry, to communicate directly with their customers. From the neighborhood boutique texting special offers to nearby shoppers, to the giant cable provider calling to pitch subscribers on an upgrade, the opportunities to efficiently, effectively reach consumers have never been more plentiful.  

TCPA litigation numbers, source: WebRecon LLC,  January 24, 2017

TCPA litigation numbers, source: WebRecon LLC,  January 24, 2017

Underscoring the need for reforming TCPA regulations

Businesses that want to run marketing campaigns often turn to telemarketing vendors, which have massive databases of phone numbers. As soon as phones start ringing, however, those businesses have opened themselves up to the risk of a TCPA lawsuit. With numbers changing hands so often, violations of the statute’s rules around wrong-number calls are bound to occur.

Until the TCPA gets an upgrade, there’s no reason to expect the flood of robocalls or tide of lawsuits to ebb. Lawmakers and regulators are attempting to modernize the law, though progress is slow. The FCC is now seeking comment on potential methods for service providers to report information on number reassignments to help businesses avoid wrong-number calls, and considering whether to provide a safe harbor for callers that inadvertently reach reassigned numbers. 

But until that happens, we’ll all have to get used to the phone ringing.

Peggy Daley is a managing director for Berkeley Research Group in Chicago, specializing in data security, investigations and analytics.