In the months preceding and following a presidential election, publications and websites give us thousands of annoying articles like “What Does the Election Mean for My Labradoodle?” and “What Does the Election Mean for my Plantar Warts?” As the author of Telephone Terrorism, a book about the Telephone Consumer Protection Act, I’m here to do my part. I will explain what I think is next for the TCPA and for phone spammers in the second papacy of St. Donald. First, let’s take a look back at what other presidents have done in this field:
Taft: Complained vociferously when a phone call from Sears Roebuck interrupted a cabinet meeting to inform him that Size 58 men’s slacks were now available in three colors.
Kennedy: Proposed sending men to the Moon in the belief that it was the one place that might be safe from telemarketing.
Bush 41: Signed the TCPA into law. Hooray for Poppy! But then his FCC mostly gutted the TCPA’s rule against unsolicited robocalls made to landline phones. Boo! You stink, George! Go back to Texas, or Connecticut, or wherever the hell you’re from!
Bush 43: Signed the Do-Not-Call list into law, and his FCC wrote robust rules against using automated predictive dialers and texting platforms to send spam to cell phones. Spent the resulting political capital on making it harder to buy cold medicine and forcing everyone to get a passport before visiting Canada.
Obama: His FCC tried to tighten the TCPA’s autodialer rules even further, but inadvertently made it illegal to use a smartphone for any purpose other than an emergency flashlight.
Biden: His FCC made an amazing discovery. It turns out that you can reduce illegal robocalls by shutting down the rogue phone companies that the spammers use! Funny how this never occurred to anyone before. Unfortunately, the courts were busy inventing new loopholes in the TCPA, so poor old Joe never got credit for the stronger enforcement tactics.
Trump’s first term as president was a mixed bag on telemarketing issues. His FCC somehow managed to be less effective than Obama’s, and robocalls reached a record high. The car warranty scams that had been vanquished years earlier even came back for another round. Trump did, however, sign the bipartisan TRACED Act, which helped lay the groundwork for the enforcement improvements that came during the Biden Administration. And spam calls finally took a dip when the pandemic temporarily disrupted the rogue call centers that had been operating in lawless lands like India, Nigeria, and Nevada.
While the TRACED Act was a positive, it left a number of serious problems unsolved. The following should be the relevant legislative priorities for Congress in the next session (in descending order of importance):
1) Quit talking about fixing the TCPA’s autodialer definition, and finally do it! The inelegant drafting of this clause has led to endless litigation, and has recently opened the door for malfeasants to blast out spam calls and texts by the billions without any recourse by either the public or the FCC.
2) The TCPA’s definition of a “telephone solicitation” needs help too. It currently applies only to sales calls – which excludes a lot of other types of bulk commercial advertising and outright fraud. Closing this gap in the Do-Not-Call list would address the “I Would Like to Buy Your House for a Nickel” spam campaigns that have become so pervasive in the past couple of years.
3) Make the TCPA more friendly to legitimate businesses so that they can avoid unnecessary lawsuits. Allow autodialed calls with “prior consent” – rather than “prior express consent” – if made for non-marketing purposes. Also, there should be a safe harbor for companies who inadvertently violate the TCPA if they can prove they followed established best practices. This defense should generally be limited to calls from a single phone number. If a company is cycling through different Caller IDs every day to evade spam-blockers, then it doesn’t meet the definition of a legitimate business.
4) Eliminate the TCPA’s distinction between cell phones and landlines. If a phone scammer wants to drain Grandma’s savings before a nursing home gets around to it, he should have to dial the call himself rather than relying on a machine. Make him work for it.
5) Strike the word “voice” from the phrase “artificial or prerecorded voice” in the TCPA. Change it to “audio message”. I once encountered a predictive dialer spammer who played a recorded musical snippet before their agent picked up the call. Their lawyer really earned his fee when he found that loophole for them.
6) Adjust the statutory damages for inflation. The base TCPA penalty should be at least $1,000. The FDCPA should be $5,000. Jail time should also be a possibility for intentional violations of either law.
Rep. Frank Pallone, Jr. (D-N.J.) has introduced the Do Not Disturb Act to address items #1 and #2. Unfortunately, it is likely to die in this session because Speaker Mike Johnson does not want a Democrat’s name on the House’s top legislative accomplishment of 2024. (It might be the House’s only legislative accomplishment of 2024.) Pallone should set his ego aside and allow a Republican to take over lead sponsorship when the legislation is reintroduced next year. It shouldn’t be too difficult to find someone to do this, because opposition to robocalling is perhaps the most widely popular and bipartisan stance that a politician can take. The TRACED Act got only three nay votes in the House, and one of those barely counts because it was from Rep. Thomas Massie. (Massie is like that kid named Mikey from the old Life Cereal ads: he hates everything. Mikey’s exasperated family eventually put him in a special school and abandoned him. Kentuckians appear to be stuck with Massie, however.)
As I write this, word has come in that the new Senate Majority Leader will be John Thune. Thune was the lead Senate sponsor of the TRACED Act, so he is likely to be agreeable to any tough new anti-robocalling bill that the House can pass. Also, a more effective law against robocallers would give President Trump an easy win that might help him enact the more controversial parts of his policy agenda. If Trump miraculously cures phone spam, people may be willing to accept the dissolution of the Department of Education, the appointment of Dr. Phil as surgeon general, and the mysterious disappearance of the cast of The View. Actually, that last one might be popular regardless.
While the stars are aligned for action in 2025, Americans have learned to be permanently disappointed in their government. What if Congress continues to drag its feet? If that happens, I expect that states will fill the gaps in the TCPA by enacting their own fixes. Already, there have been some efforts along these lines. If the Chamber of Commerce thinks the TCPA is too difficult to comply with now, just wait until there are fifty different autodialer definitions and fifty different sets of opt-out rules being interpreted by fifty state judiciaries. At least this would guarantee full employment among lobbyists and lawyers.
Also, for the worst recidivist phone spammers, state attorneys-general should brush off the law of “nuisance” that is taught in first-year Torts classes. An action for public nuisance may be appropriate when a spam caller continually harasses large numbers of random people, especially if the caller also violates other laws and contributes little of value to society. I previously suggested that Midland Credit Management (a/k/a MCM) might make a good test case for a public nuisance lawsuit. MCM’s malevolent antics also hint at a possible way to spur improvements to the TCPA and other consumer laws. We all know that there are plenty of lawmakers who have racked up unpaid bills, such as parking fines, PPP loans, and strip club bar tabs. Even our incoming president, billionaire though he may be, has reportedly failed to pay for some campaign rally expenses. How about if we buy up politicians’ debts at pennies on the dollar and assign them to several bottom-of-the-barrel debt collectors? We’ll hire the really trashy companies who harass debtors’ family and friends with predictive dialer calls, and who sneakily obtain questionable court judgments by filing all the paperwork in American Samoa. A few months of this might be enough to light a fire under Congress’s butt.
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