Among other things, the Telephone Consumer Protection Act (TCPA) of 1991 restricts the use of automated telephone dialing systems, prohibits calls to numbers on the National Do Not Call Registry (“National DNC”), and includes a private right of action (“PROA”) that enables ordinary citizens to file lawsuits against violators.
Since its initial passage in December of 1991, the statute has been amended on several occasions to keep pace with changes in technology and market conditions. A surge in scam calls over the past few years has led many to believe that the phone lines are no longer safe. As a result, legislators have introduced new bills in hopes of stemming the tide of scam calls to restore confidence in the telecommunications system.
On March 20, 2024, S.3991 was introduced in the Senate, and a corresponding bill, H.R.7756, was introduced in the House of Representatives. If passed, the proposed legislation would broaden the categories of phone numbers eligible for listing on the National DNC and expand the scope of the PROA.
TCPA - Private Right of Action
The TCPA (47 USC §227) includes a private right of action to pursue two (2) distinct types of violations.
- §227(b) ATDS/Robocall Violations: These are violations of the sections of the TCPA that restrict the use of automated telephone equipment and artificial or pre-recorded voices. Section 227(b)(1)(A)(iii) prohibits using an ATDS to call a number assigned to a cellular service, and (§227(b)(B) prohibits initiating any phone call to a landline using an artificial or pre-recorded voice, absent prior express written consent.
- §227(c) DNC Violationsunder the TCPA: These are violations of the TCPA section prohibiting calls to any number listed on the National DNC, as detailed in §227(c)(5). Unlike the PROA granted under §227(b), the PROA for DNC violations is only triggered when a person receives more than one call that violates the DNC within any 12-month period.
If passed, the bills would expand the PROA under §227(b) by enabling consumers to file suit after receiving a single call that violates the DNC and establish $500 as the minimum statutory penalty for DNC violations.
DNC Expansion
As it currently stands, the National DNC is technically restricted to residential numbers and cellphones, meaning that landline and cellphone numbers registered to businesses are not eligible for listing on the registry.
If passed, the proposed legislation would permit numbers registered to businesses to be added to the National DNC, which would then enable small business owners to file lawsuits to pursue DNC violations.
How the TCPA Updates Impact Businesses
If passed, the proposed legislation would dramatically increase TCPA lawsuit filings, which are already choking the court system and do absolutely nothing to stem the tide of illegal scam robocalls.
They would also have little to no effect on the offshore entities and individuals responsible for the overwhelming bulk of criminal scams perpetuated through illegal robocalls. Operating as they do far out of the jurisdiction of US courts, none of them will ever experience the existential dread of a TCPA class action lawsuit, which would instead be borne by well-meaning businesses that fail to properly scrub their data against the National DNC and fall victim to the lowered threshold for legal action.
Likewise, many hapless companies operating in the B2B space will find themselves on the wrong end of a TCPA lawsuit.
What Happens Next
The fate of the proposed legislation rests on the legislative process. If either chamber fails to pass the bills to update the TCPA, it will not advance further. Should both the House and Senate pass identical bills, they will be sent to the President for approval. Conversely, if differing versions are passed, they will undergo reconciliation through a Conference Committee, a common procedure for major legislation.
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