Attempting to comply with the Telephone Consumer Protection Act these days it a lot like trying to drive in a snowstorm; it can be very tough not to end up in a ditch.
Since a ruling from the Court of Appeals for the District of Columbia this past Spring, which overturned parts of a 2015 Declaratory Order issued by the Federal Communications Commission related to the TCPA, District Courts across the country have taken to a number of different interpretations about what is and what is not allowed, especially in what constitutes an automated telephone dialing system (ATDS).
A copy of the webinar recording can be accessed by clicking here.
A panel of legal experts shared their insights during a webinar last week, which was sponsored by TCN. The panelists for the webinar were:
- Tom Dominczyk, principal, Maurice Wutscher
- David Kaminski, partner, Carlson & Messer
- Nicole Strickler, partner, Messer Strickler
The Appeals Court ruling overturned some parts of the 2015 Order and left some parts in tact. In attempting to interpret the Appeals Court ruling, District Courts have taken to relying on previous TCPA-related guidance from the FCC, which was issued in 2003 and again in 2008, or developing their own interpretations. At the same time, the FCC has started the process of developing a new rule related to the parts of the 2015 Order which were struck down, but as the panelists noted, it could be several years before that rule is issued.
Ajit Pai, the chairman of the FCC, may feel some urgency to try and have a new rule in place before November 2020, when the next presidential election is held, the panelists said. If a Democrat beats President Trump in 2020, control of the FCC will switch over from Pai, a Republican, to a Democrat, and a TCPA rule could end up looking a lot like the 2015 Order, which was approved under former chairman Tom Wheeler, a Democrat.
In the absence of a clear and bright-line rule that says what is and what is not allowed, compliance comes down to two things, the panelists said: common sense and documentation.
Collection agencies need to take a common sense approach when setting their calling strategies, Strickler said during the webinar. Common sense means not calling too much, for example. Equally important is documenting the policies and procedures in place to show how decisions were made.
“It’s all about minimizing risks,” Kaminski said during the webinar.
