Shakeup of FCC leadership may lead to changes in TCPA enforcement

The imminent resignation of Federal Communications Commission (FCC) Democratic Chairman Tom Wheeler on January 20, 2017, has led to speculation on the nomination of his successor and how this will affect the enforcement of the Telephone Consumer Protection Act (TCPA).

The leading candidate for his replacement is current Republican Commissioner, Ajit Pai, who is expected to be named acting Chairman by January 20.  Pai, along with Republican Commissioner Michael O’Rielly, have been outspoken critics on a number of FCC decisions made during Chairman Wheeler’s three-year tenure.

Pai was particularly critical of the TCPA Omnibus Declaratory Ruling issued in July 2015, which expanded the definition of an “automatic telephone dialing system” (ATDS) to include all dialing equipment that has the capacity to store or produce, and dial random or sequential numbers, even if it is not presently used for that purpose.  Pai outlined his objections to the Ruling in his Dissenting Statement:

The common thread here is that in practice the TCPA has strayed far from its original purpose. And the FCC has the power to fix that. We could be taking aggressive enforcement action against those who violate the federal Do-Not-Call rules. We could be establishing a safe harbor so that carriers could block spoofed calls from overseas without fear of liability. And we could be shutting down the abusive lawsuits by closing the legal loopholes that trial lawyers have exploited to target legitimate communications between businesses and consumers.

Instead, the Order takes the opposite tack. Rather than focus on the illegal telemarketing calls that consumers really care about, the Order twists the law’s words even further to target useful communications between legitimate businesses and their customers. This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.

Dissenting State of Commissioner Pai (June 18, 2015).

Based on his past comments, if Pai becomes the next Chairman, he may try to narrow the TCPA’s expansive reach by revising the definition of an ATDS or propose alternative ways to curb the abusive lawsuits against good-faith actors.  This is good news for legitimate businesses that attempt to comply with the TCPA.   

As it stands, Chairman Wheeler’s resignation will mean a 2-1 Republican majority in the Commission under the administration of President Donald Trump.  Democratic Commissioner Mignon Clyburn and O’Rielly will continue to serve out their five-year terms with the FCC.  While President Obama renominated Democratic Commissioner Jessica Rosenworcel on January 4, it is unclear if the Republican-controlled Senate will reappoint her, as they refused to do last year.