TCPA Has Lawyers Dialing the Wrong Number

The Telephone Consumer Protection Act (TCPA) is the 1995 law that was supposed to protect us from unfettered auto-dialing.

The TCPA includes two key provisions guaranteed to keep the legal profession at full employment:

• Recipients of illegal robocalls have a Right of Private Action, allowing them to bring a civil suit against the caller.
• Statutory penalties are specified at $500 to $1,500 PER CALL; the recipient doesn’t have to prove damages.

Plaintiff’s attorneys have done the math. Through the magic of a class action suit, if you can show that a caller made a handful of calls to each of a million consumers, you can argue for a multi-BILLION dollar award.

It is no wonder, then, that the TCPA is a contender for legislation that has spurred more lawsuits than any other. Google “TCPA attorney” and you’ll find armies ready for deployment on both sides.

For the American consumer besieged by unwanted calls, this sounds like a great plan. Just the threat of being hauled into court should be enough to deter would-be robocallers. But it hasn’t worked as intended.

A private-practice lawyer working on contingency has two criteria when targeting a defendant: he has to be accessible to our court system, and he has to have deep pockets.

Earlier, we mapped the robocalling landscape, pointing out that billions of calls are placed each month by fraudsters and marketers. Most of the fraudsters are overseas, putting them out of reach of a USA civil lawsuit. Those running prolific marketing campaigns from within the US are tiny outfits with negligible assets. A guy operating out of his basement can easily generate thousands of robocalls per minute.

So instead of chasing those really bad guys, the plaintiffs’ attorneys look for a big company with a compliance defect in their otherwise-legal robocalling program. A caller that makes “just” 10,000 faulty calls can yield a lucrative payday. Defense attorneys make a good living advising (legal) robocalling clients how to stay out of trouble and how to minimize losses when the inevitable lawsuit arrives.

The TCPA has those armies of attorneys sweating over a few hundred or thousand calls at a time. Meanwhile, the egregious bad actors are under the radar placing illegal calls by the millions.

Luckily, federal and state enforcement officials don’t work on contingency. Still, US enforcers have a difficult time going after foreign callers directly. So it’s critical that they take advantage of prior and new legislation that also holds telephone providers accountable to the extent they ENABLE the illegal callers. Those US-based providers need to be the choke point that cuts off the illegal calls before they enter our network.