By: Biniam Tesfamariam,
How many of you find it troublesome when a condition to using a company’s service is answering to their programmed machines via telephone? Usually these phone calls will take longer than expected upsetting customers in the process. For more than two decades, Congress and The Federal Communications Commission (“FCC”) have sought to protect consumers from the nuisance, invasion of privacy, cost, and inconvenience of autodialed calls and prerecorded artificial voice messages (robocalls).
Congress found that consumers consider these kinds of calls, “regardless of the content or the initiator of the message, to be a nuisance, are an invasion of privacy, and interfere with interstate commerce”; and that banning such calls except when made for an emergency purpose or when the called party consents to receiving the call, “is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.”
In 2012, the FCC revised its Telephone Consumer Protection Act (“TCPA”) rules to require telemarketers (1) to obtain prior express written consent from consumers before robo calling them, (2) to no longer allow telemarketers to use an “established business relationship” to avoid getting consent from consumers when their home phones, and (3) to require telemarketers to provide an automated, interactive “opt-out” mechanism during each robocall so consumers can immediately tell the telemarketer to stop calling. The FCC enforces the TCPA by conducting investigations and taking enforcement actions against violators.
Satisfactory customer service is a major pillar in any successful business. Recently, companies such as Lyft (similar to Uber) and First National Bank have been put on notice for violating federal telemarketing rules. There are obvious benefits for businesses for coercing consumers to using autodialed messages as part of their telemarketing advertisement scheme. For starters, these businesses do not have to pay someone consistently to perform this task and it allows one to advertise their products at a low cost. Unfortunately for these businesses, the risk of litigation associated with practicing these telemarketing advertisement schemes has risen in recent years. TCPA litigation has trended upward by 63% between 2011 and 2012. Rises in litigation seemed to be fueled by factors such as: an increase in consumer use of cell phones as primary phones, an increased eased of filing TCPA class actions, and defects in consent all contributed to rises in litigation. For businesses, it would be best to make amendments to their operation agreements to remove such practices.
As time and technology progressed, it’s fascinating and productive to see laws being enacted to protect consumers from the nuisance and privacy issues of telemarketing advertisements. More and more consumers are taking advantage of the regulatory process by submitting public complaints on telemarketing. Just last year the FCC received up to 215,000 complaints from the public regarding telemarketing and robocalls. On the Federal Trade Commissions -Bureau of Consumer Protection webpage the first thing you will find is either the option to file a general complaint or information regarding robocalls. As more consumers become knowledgeable on these issues and the options they have to have their voices heard, it will be interesting to see if the numbers in complaints drop in the next couple of years.
 See S. Rep. No. 102-178, 1st Sess., 102nd Cong., at 2, 4-5 (1991), reprinted in 1991 U.S.C.A.N. 1968, available at https://www.fcc.gov/document/fcc-cites-first-national-bank-and-lyft-telemarketing-violations-1
 47 C.F.R. § 64.1200
 Brian Fung, Lyft Automatically Opts you into Receiving Robocalls. That Doesn’t sit well with the FCC (Sept. 11, 2015, 3:11 PM), https://www.washingtonpost.com/news/the-switch/wp/2015/09/11/lyft-and-first-national-banks-telemarketing-broke-the-law-regulators-say.
 Doug Smith, Andrew Smith, Robocalling and Wireless Numbers: Understanding the Regulatory Landscape (May 2013), http://media.mofo.com/files/Uploads/Images/1305-Business-Law-Today-Understanding-the-Regulatory-Landscape.pdf
 Brian Fung, Sick of Telemarketers and Robocalls? FCC is Poised for a Crackdown. (May 27, 2015), https://www.washingtonpost.com/news/the-switch/wp/2015/05/27/sick-of-telemarketers-and-robocalls-the-fcc-is-poised-for-a-crackdown/
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