Answering the Call for Telephone Consumer Protection Act Reform: Effectuating Congressional Intent Within 47 U.S.C. § 227(B)(1)(A)

Abstract

This Note analyzes the current state of the civil law surrounding the Telephone Consumer Protection Act (TCPA) and highlights a glaring flaw within the current practice of assigning liability to telephonic solicitors utilizing an automatic telephone dialing system (autodialer): solicitors can be subjected to liability even though their actions are not what Congress intended to prevent. Congress enacted the TCPA in response to unique consumer privacy and public safety concerns. For example, the use of an autodialer created a substantial likelihood that autodialers would call emergency services and could “seize” their telephone lines and prevent those lines from being utilized to receive calls from those needing emergency services. The Federal Communications Commission (FCC) and the judiciary, however, have developed differing interpretations of the TCPA, which created unintentional dangers for businesses properly utilizing telemarketing strategies. These dangers that were left unresolved by the Supreme Court’s ruling in Facebook, Inc. v. Duguid. This fragmented interpretation and application of federal law within various jurisdictions has left callers liable to substantial fines, so long as they use a device that merely has the capacity to act as an autodialer—even if the device did not actually use autodialer functionality. Such a broad interpretation places a heavy burden on companies using technology that does not create the kind of harm against which the TCPA was meant to protect. To effectuate Congressional intent, this Note proposes that the FCC should issue a new interpretation of the TCPA by declaratory ruling that will attach liability to defendants who make use of autodialer functionality, not those who’s devices merely have the capacity to do so. Alternatively, this Note proposes that either Congress amend the TCPA in a manner that better aligns with its goals, or the Supreme Court provide clarification to the lower courts as to how one acquires liability. This change will provide certainty and fairness to businesses, consumers, and the judiciary.