The Current State of the Telephone Consumer Protection Act

With new leadership in place at the Federal Communications Commission (FCC or Commission) and ongoing litigation challenging aspects of its July 2015 Omnibus Ruling and Order (2015 Order or Order) concerning the Telephone Consumer Protection Act (TCPA), the financial services industry is cautiously optimistic that there could be some much-needed relief from this outdated and onerous statute. Both Chairman Ajit Pai and Commissioner Michael O’Rielly, who are now in the majority at the FCC in the new Administration, have been openly critical of past FCC interpretations of the TCPA. In fact, they each wrote strongly-worded dissents to the 2015 Order. The TCPA was enacted into law nearly 30 years ago. As such, it can be challenging to apply it to many new technologies that have developed since then and complex FCC interpretations have also made TCPA compliance difficult. Since there is no cap on statutory damages, TCPA-based class action litigation exacerbates compliance concerns. This has put many financial institutions in the difficult situation of having to choose between curtailing communications with consumers that consumers generally want, such as information about data breaches, fraud alerts, outstanding debts or fees, and other important account information, or alternatively risking liability. Despite little success on achieving TCPA reform, that provides meaningful relief to the financial services industry, from either Congress or the FCC, there is some renewed optimism for greater reforms with the change in leadership at the FCC.

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