House Energy and Commerce Committee Members Oppose TCPA Proposal

On Dec. 3, 2010, 11 members of the House Energy and Commerce Committee submitted a formal letter to the Federal Communications Commission opposing the proposed rule that would prohibit the use of autodialers to contact consumers’ wireless numbers. The bipartisan letter was led by Reps. Jim Matheson (D-Utah) and Lee Terry (R-Neb.) as well as potential Energy and Commerce chairmen in the upcoming Congress, Fred Upton (R-Mich.) and John Shimkus (R-Ill.). This letter is a strong signal to the FCC that ACA International’s coalition against the proposed rule has received significant legislative support.

In the letter, the legislators highlighted the many flaws in the FCC’s proposed rule and urge its reconsideration. The letter expressed concern that instead of implementing rules that focus on telemarketers and maximizing consistency with the Telemarketing Sales Rule, the proposed rule imposes obligations on non-telemarketing calls. These restrictions would unnecessarily thwart timely information from reaching consumers.

Further, mobile phones have steadily replaced landlines as the primary communications device used by consumers. The Government Accountability Office recently concluded that “nearly 40 percent of households rely primarily on wireless devices.” By forcing companies to obtain express written consent to contact wireless numbers, the FCC is keeping consumers from receiving important information that is often delivered by autodialer or prerecorded messages. Airlines, pharmacies, credit card companies and other business all provide necessary information to their customers utilizing this technology.

The legislators also requested that the FCC clarify that predictive dialers are not subject to regulations that apply to autodialers. Predictive dialers do not have the capacity to randomly or sequentially generate numbers unless the device’s software is modified for that purpose. Therefore, unless they are modified predictive dialers should not be subject to rules that apply to autodialers.

The legislators concluded by expressing concern over the proposed rule’s modification of the established business relationship exception in regard to artificial and prerecorded messages. Until now, the FCC has used an implied consent standard for artificial and prerecorded messages when a business relationship exists. Since recorded messages are no less “invited or permitted” as live calls, there is no justification to eliminate the established business relationship exemption.

The legislators, along with ACA, look forward to working with the FCC to protect consumers from unsolicited telemarketing calls without unduly inhibiting consumers’ access to critical information. ACA would like to thank Reps. Matheson and Terry for their efforts supporting the letter, all of the members of the House Energy and Commerce Committee who signed the letter, as well as all of the ACA members and units who contributed to the TCPA Coalition fundraising efforts and supported this important initiative for the industry.

Please contact Nick Morgan, ACA International’s government affairs specialist, at +1(202) 547-2670 or morgan@acainternational.org with questions.