The dust has begin to settle following Friday’s ruling from the Court of Appeals for the District of Columbia, which said that changes made to the Telephone Consumer Protection Act back in 2015 by the Federal Communications Commission were to be set aside, and it’s becoming clearer and clearer what it means for the ARM industry.
And while the ARM industry, and even the current leadership of the FCC, may be partying hard following the ruling, a panel of lawyers speaking on a webinar yesterday agreed that the increase in TCPA lawsuits will likely not slow down. But the good news for the industry is that the defenses it can use to fight those lawsuits became a lot stronger.
“All the defenses that were hurt by the 2015 ruling are not hurt anymore,” said Don Maurice, a partner at Maurice Wutscher. “That 2015 order can now be put at the bottom of a birdcage.”
A copy of the webinar recording can be accessed here.
The Appeals Court struck down several of the changes to the TCPA that the FCC made in 2015, including setting aside the definition of what constitutes an automatic telephone dialing system (ATDS) and a one-call safe harbor for attempting to contact individuals whose mobile phone numbers may have been reassigned. The Appeals Court upheld the changes allowing individuals to revoke consent by any “reasonable” means.
For the ARM industry, it’s not a clear win, said Tom Good, the managing attorney at Barron & Newburger, but it was a lot better than the alternative.
“The victory is that we didn’t lose,” Good said during the webinar, which was sponsored by TCN.
The losers in this ruling might be professional plaintiffs who make their living by suing companies for violating the TCPA. Under the 2015 ruling, every attempted call after the first one was a violation and professional plaintiffs could just sit back and rack up calls and then decide when to sue.
“This ruling limits the fortune-grabbing of professional plaintiffs,” said Scott E. Wortman, a partner at the law firm of Blank Rome.
Collection agencies should not be looking at this ruling as an excuse to run out and stop being careful when it comes to their compliance policies and procedures, Good said.
“Once you find out a number has been reassigned, you still have to remove it from your database,” Good said, adding that if an agent hears on a voicemail message that the name is different than the intended contact, or if someone who answers the phone says it is a wrong number, those numbers should be removed.
“You have got to have procedures in place,” Maurice said. “You’re still going to have to document what you doing to find if a number has been re-assigned and what you did with the facts you gathered.”
And while the ruling struck down the changes that were made by the FCC, it did not offer any replacement provisions, which means that there still are some holes in the law, Wortman said.
“Things definitely got better,” as a result of the ruling, Wortman said. “But some ambiguous holes still exist.”
