Research Groups Seek to Join TCPA Lawsuit Against FCC

The Council of American Research Organizations (CASRO) and the Marketing Research Association (MRA) filed a joint motion last week to intervene in a court case against new telephone rules issued by the Federal Communications Commission.

ACA International brought the lawsuit against the FCC over the Telephone Consumer Protection Act Omnibus Declaratory Ruling and Order issued in July.

CASRO and MRA groups filed the motion in the U.S. Court of Appeals for the D.C. Circuit. They stated that they are specifically interested in opposing the FCC's definitions of "autodialer" and "called party" as outlined in the TCPA ruling.

The groups state that they "largely support ACA International’s challenge to the Declaratory Ruling" but contend that they were compelled to ask the court's permission to intervene in the lawsuit because the key interests of the marketing research industry are not specifically represented by any petitioners or other interveners. 

ACA, the largest association representing collection agencies and creditors, had quickly filed a petition for review of the FCC’s Declaratory Ruling and Order hours after it was issued. Sirius XM Radio and the Professional Association for Customer Engagement (PACE) followed with similar petitions.

The Judicial Panel of Multidistrict Litigation consolidated and assigned the three lawsuits to the D.C. Circuit. Four other parties earlier this month also filed a joint motion to intervene, including MRS BPO LLC, Cavalry Portfolio Services LLC, Diversified Consultants Inc. and Mercantile Adjustment Bureau LLC. 

The FCC states that the ruling reaffirms the "TCPA’s protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology and responding to a number of requests for clarity from businesses and other callers.”

The ruling reiterates and simplifies key sections of the TCPA. If a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have gotten the consumer’s prior express consent or face liability for violating the TCPA. Prior express consent must be in writing if the message is a telemarketing call, but can be either oral or written if the call is informational.

The FCC in a party-line vote last month had approved new robocalling rules that mostly rejected the entreaties of banks and other companies. The rules clearly do not give banks a break with respect to debt collection calls, which have been the subject of much of the litigation against banks.

For bankers, the vote represented a reversal of fortune as earlier this year industry representatives had confidence that the FCC would issue a sympathetic ruling.

TCPA violations are subject to strict liability - $500 for each unsolicited call, or $1,500 if the company intentionally makes a call after the cellphone user denies permission. Callers are liable even if they have the permission of the person they are trying to reach but the phone number has been reassigned to another individual.

The FCC's rules carve out an exemption for the first wrong-number phone call but not for any subsequent calls to that number. An FCC staffer said that the new rules will provide an incentive for companies to take proactive steps, such as confirming the phone number by email, to ensure they are robo-calling the right person.