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Senators Urge FCC to Reject Telemarketing Exemptions

May 22, 2015
By Michelle Amodio - Telemarketing Software Contributor

While the Telephone Consumer Protection Act (TCPA) has been around since 1991, the FCC (News - Alert) is heading back to the drawing board to consider loosening some of the grip that has held back telemarketing calls since its inception.

Essentially, the TCPA has levied restrictions on the use of telephone solicitations and regulates the use of auto/predictive dialers, which are used to initiate faxes, prerecorded voice messages, and SMS text messages. Because the FCC is considering weakening some of the rules within, many senators are urging the FCC to reject this because they feel it will lead to more unwanted calls.

Spearheaded by Sen. Ron Wyden (D-Ore.) and nine fellow Senate Democrats, a letter was penned asking the FCC to cast off these proposals that will deteriorate the law.

“These proposals would threaten privacy and result in an increase in disruptive and annoying calls for American consumers,” the letter said, addressed to FCC Chairman Tom Wheeler (News - Alert). “We strongly urge the FCC to maintain the TCPA’s privacy protections and to continue to protect consumers from unwanted calls.”

There have been many cases that have been tried in court dealing with consumer privacy as it relates to TCPA violations. In 2013, the case of Nelson v. Santander said that a debt buyer called the case’s Plaintiff on a mobile phone more than 1000 times. The Defendant raised several defenses, including the defense that some of the calls were made in dialer preview mode. The Court maintained that, because the calls to the Plaintiff were made through the dialer, the Defendant violated the TCPA.

A unique case that made headlines was Clark v. Avatar Techs PHL, Inc., in which the plaintiff alleged that the defendant used a VoIP service that allowed it to circumvent caller identification by causing an inaccurate number to be displayed.

The plaintiff asserted claims against both Avatar Technologies (the caller) and Flowroute, LLC (the VoIP provider). The court found that the vender of the VoIP service is not secondarily liable for the caller’s claim of TCPA violation.

It is obvious that the TCPA needs some amending, as technology has come a long way since 1991. Recent cases have led to the FCC going back to the drawing board to better define some of the misunderstood rulings under its jurisdiction. Of note are cases that deal with predictive dialing and consent from recipients, but now that weaker rules are being considered, it’s a wonder what will happen to the already-existing gray areas.

The confusion will likely linger a bit longer, but for now it’s a question of what move the FCC will make in terms of the rule changes.