Consumers need stronger protections from robocalls

Consumers are completely fed up with unwanted robocalls. They are complaining in record numbers to the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) about the billions of robocalls and texts that are made on a daily basis. Last year alone, there were almost 4 million complaints to these two federal agencies about unwanted robocalls and texts. Many of these complaints were about calls and texts received by consumers after they repeatedly requested that they stop.

Similarly, many of the cases in litigation involve thousands of unwanted calls or texts sent to individuals, even after repeated requests to the sender for these calls and texts to stop. Consumers only go to lawyers to initiate litigation after all else fails: the litigation is a direct result of consumers’ frustration with these callers and because companies are breaking the law.

The Telephone Consumer Protection Act (TCPA) is clear, and really, quite simple to follow: every robocall and text to a cell phone is legal only if it is made with consent (except in an emergency). This 25-year old federal law simply requires that these callers ensure that they have this consent before they send calls or texts, and that the consent has not been revoked.

{mosads}Yet the calling industry is crying foul: they are being sued under this law, and forced to settle cases for millions of dollars. This is what they said in a recent congressional hearing, and it was repeated in an opinion letter in this publication last week. But these protests are disingenuous. Robocallers know how to comply with the law–they just choose not to. Consider the three cases cited in last week’s letter:

• Claim: “Walgreens was sued under the TCPA for providing a customer service: prescription pick-up reminders.” 

• Reality: Walgreens robocalled over 9 million consumers, without knowing for sure they had their consent, to “remind” and encourage them to refill their prescriptions with Walgreens. These calls were not informational updates, they were commercial solicitations.
• Claim: “The NBA’s L.A. Clippers and Los Angeles Lakers were both sued for sending promotional texts to about 130,000 people who had first texted the team in response to a big screen message at a game.”

• Reality: Tens of thousands of promotional texts were sent to fans who were invited to text a message to the scoreboard at a basketball game. But the invitation did not disclose that fans’ numbers would be stored and used to advertise promotions to them in the future.
• Claim: “Class action attorneys have more recently filed a $5 million suit against Facebook for sending this text message, clearly intended to protect its users: ‘Your Facebook account was accessed from [Internet browser] at [time]. Log in for more info.’”

• Reality: The person receiving these calls didn’t have a Facebook account. Instead, he had purchased a cellphone with a recycled phone number. He repeatedly sent emails to Facebook asking for the texts to stop. In response, Facebook sent him an automated email directing him to log on to the Facebook website to report problematic “content.” He then responded to a text message from Facebook with the word “off.” Facebook responded: “Facebook texts are now off. Reply on to turn them back on.” However, the very same day, Facebook sent him yet another text message.

It is neither the fault of the law, nor the FCC, that there is a growth in TCPA litigation. Lawsuits are filed because consumers are fed up and want to stop the tsunami of robocalls and texts. Telemarketers are being sued under the TCPA because they are not following the law and they are harassing people with unwanted robocalls. If the current penalties are not sufficient to convince businesses to stop flooding us with unwanted robocalls, the penalties should be strengthened, not weakened.

Margot Saunders is an attorney with the National Consumer Law Center, a public interest law firm representing low-income consumers with offices in Boston and Washington, D.C.​

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