From the Web: ‘NCLC Spokeswoman’s Finger-Pointing Congressional Testimony Blames Legitimate Business for Robocall Cloud’
Squire Patton Boggs Partner Eric J. Troutman analyzes National Consumer Law Center Senior Counsel Margot Saunders’ testimony before the Senate and varying sets of data on illegal robocalls.
4/16/2019 1:00 PM
The testimony from National Consumer Law Center Senior Counsel Margot Saunders before the Senate Subcommittee on Communications, Technology, Innovation, and the Internet targeting legitimate businesses for increases in “illegal robocalls” has been heard before as attention to this issue continues on Capitol Hill.
“It’s an easy sell–people hate robocalls and are looking to blame someone real and with deep enough pockets to satisfy the bill. But is it true?,” writes Eric J. Troutman, partner at Squire Patton Boggs, in a TCPAWorld article following the April 11 hearing.
Troutman notes Saunders’ testimony cites statistics from YouMail’s Robocall Index and her statement that, “the majority of robocalls made every day to our home phones and our cell phones are not overt scam calls, but calls made by so-called ‘legitimate businesses.’”
Delving into the data, Troutman talked with YouMail CEO Alex Quilici and Robocall Radar’s Alex Algard, CEO of call-blocking app Hiya, and learned important distinctions about the calls, especially those from debt collectors:
“Quilici … explained transparently that his index does not make ‘value judgments’ about the calls he tracks and he doesn’t know how the calls are actually placed. YouMail is just tracking high volume calls, which he calls ‘robocalls’ because that’s what YouMail thinks consumers call high-volume calls. He is quick to admit, however, that large percentages of those calls are account reminder calls, low balance and fraud alert messages, and other legitimate—and innocuous—calls that consumers want and expect. Importantly, YouMail has no idea—and does not purport to track—which calls are legal or illegal, wanted or unwanted, consented to or unconsented to. All the Robocall Index does it track high-volume calls. That’s about it,” Troutman writes.
“Alex Algard at the Robocall Radar employs sophisticated algorithms to track when calls are wanted or unwanted based upon consumer behavior,” according to Troutman. “’Actions speak louder than words’ Algard tells the Unprecedented Podcast team (operated by Squire Patton Boggs) and he explains that the vast majority of debt collection calls are actually wanted calls. His tracking shows that consumers interact with account reminders and collection calls and respond well because they “see the value” in these calls. In fact, according to the Robocall Radar only 2 % of unwanted ‘robocalls’ calls are debt collection calls.”
The data from Robocall Radar counters Saunders’ testimony, which is based on YouMail’s Robocall Index, that “debt collection callers comprise 19 of the top 20 robocallers in the United States.”
Troutman also reflects on how Saunders challenges click-to-dial products and prior express consent from consumers in her testimony.
“While I cannot speak with authority as to every American business out there, every single business I have ever represented has sincerely tried to comply with the TCPA and took compliance with the law seriously. TCPA violations-when they do occur–arise out of: i) shifting and unclear standards; ii) the inability to detect recycled numbers; and iii) inadvertent human error, especially around revocation.
The idea that legitimate companies are making the “business decision” to violate the TCPA is laughably uninformed. And testimony to that effect is simply unfounded and dangerous,” he concludes.
Meanwhile, ACA International addressed the importance of legitimate business calls impeded by onerous provisions in the TCPA in addition to problems created by illegal actors making illegal robocalls in a letter to the subcommittee chair Senate Majority Whip John Thune, R-S.D., and ranking member U.S. Sen. Brian Schatz, D-Hawaii.
ACA CEO Mark Neeb asked the subcommittee to review the following considerations:
- TCPA interpretations remain onerous and create unclear compliance expectations that leave businesses vulnerable to frivolous class action litigation. The FCC must act to clarify its interpretations of the TCPA as directed by the D.C. Circuit Court of Appeals (D.C. Circuit) after the decision in ACA Int’l v. FCC;
- New call blocking and labeling technologies are unfairly impeding calls from credit and collection professionals and other legitimate businesses, in some instances in deceptive ways, or ways that engage in slanderous labeling of legitimate calls; and
- Several other regulators including the U.S. Department of the Treasury (Treasury), the Small Business Administration (SBA) Office of Advocacy; and the Bureau of Consumer Financial Protection (CFPB or Bureau) have recognized the importance of legitimate businesses having the ability to communicate with consumers.
“The use of modern technology including predictive dialers is critical for the ability to contact consumers in a timely and efficient matter. Often if a consumer is put on notice of a debt sooner and earlier in the collection process, their chances improve of resolving that matter favorably,” Neeb said.
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