ACA International advocacy leaders talked with the Federal Communications Commission during the recent Washington Insights Virtual Fly-In, advancing the association’s relationship with the FCC and reviewing critical ARM industry topics. Editor’s note: This article is available for members only.
5/10/2021 14:30
ACA International advocacy leaders Leah Dempsey, vice president, senior counsel federal advocacy, and Tamar Yudenfreund, senior director, public policy at Encore Capital Group chair of the ACA Federal Affairs Committee, recently discussed accounts receivable management industry issues with Federal Communications Commission member Nathan Simington.
Simington is serving a five-year term on the FCC after being confirmed by the U.S. Senate in December.
Here are some highlights from their conversation.
Q. As the newest commissioner, how have the first few months at the FCC been? Has anything surprised you about your new role?
A. Perhaps the most surprising thing to me about joining the FCC has been the incredible depth of the staff. It’s truly a building full of subject matter experts. That enables the bureaus and offices at the FCC to put up an extremely strong technical record, which in turn creates a bipartisan consensus.
Virtually all the issues coming before the FCC are highly technical and thus not truly controversial. It’s also a positive that industry and society groups have been great at proactive engagement, just as we’re seeing today.
The institutional mission of the FCC manages to secure the loyalty and commitment even of people who have moved on long ago. I think it shows recognition of the mission of the FCC and its unique role.
Q. You’ve been vocal about censorship from groups like Twitter and Facebook. Can you talk about how the FCC can get involved?
A. I don’t think that anyone should support censorship of speech as a general principle, but I’m going to push back a little bit on the idea of constituting a voice for a particular issue. Today, anyone can broadcast anything, and society is struggling with this era.
As to the FCC’s role, the FCC can’t and shouldn’t get involved in rules on censorship. As for rulemaking on censorship and social media, that’s a nonstarter.
What the FCC can do is look into how Section 230 is interpreted. This is about the scope of immunities and not about a larger mission to promote or restrict things that can be posted online. My preference is to wait for Congress to act.
Q. ACA members, although highly regulated and licensed entities, have in some situations seen private business censorship. For example, one carrier today has specifically identified debt collection texts as something that should be blocked unless an aggregator can get an exception to send them. Do you see any similarities in those situations?
A. I would say that texts are in a different regulatory world than online postings because with online postings it’s not even clear what agency would have jurisdiction [and] it’s not really thoroughly addressed in any statute. With SMS, that has already been addressed with the Telephone Consumer Protection Act. With the legal infrastructure being so fundamentally different, I find it hard to make an analogy that’s legally productive. Part of favoring light-touch regulation is permitting private companies, I think, where possible, to resolve disputes privately.
The FCC has to engage in rulemaking where market participants can’t resolve things, or where it’s called on to do so.
If there is a method under carriers’ rules [and] under which business can generally be done, then that might not be comfortable for everyone 100%, but a good compromise sometimes leaves everyone mad. I would love to see your members and carriers come to an accommodation by tailoring your communications over their networks in a way that they feel happy to put into their contract of carriage because they perceive it as acceptable for their customers.
I can’t fault carriers for their desire to protect their customers from what they might characterize as harassment or spam, but on the other hand, naturally, I understand your members might view their work differently and carriers have got to take both sides of that into the equation.
The question of whether compliance with the Consumer Financial Protection Bureau mandate specifically as to a texting campaign should or does require the use or the opening of a carrier’s network for that campaign is also a little bit of an issue to address. The CFPB’s rulings, on my review at least, set a legal ceiling on the elements of the campaign. They don’t obligate carriers to carry such a campaign. So, beyond debt collection, it’s not 100% clear to me that carriers have some legal obligation to carry text messaging campaigns and, just as we see with Apple and its choice on [a] device blocking policy, I think it’s hopefully for carriers to have a number of options as to where they want to opt-in and where they want to opt-out, and on the other hand [allow] the debt collection agency to negotiate on a case by case basis and thereby establish an industry norm.
Q. Another big issue has been call blocking and labeling. We’ve been working very closely with a coalition of callers over the last several years to highlight instances of problematic blocking of legitimate calls. We were happy in December when the FCC took some action in this area, in particular to respond to blocking within 24 hours. Do you have any thoughts on how we can continue to work on this with both the FCC and lawmakers to distinguish between the legitimate business calls that we think consumers want as opposed to these illegal robocalls that no one wants to be getting?
A. It’s one of these very tough things. No one likes to deal with collecting debts until it’s time for them to collect one and all of a sudden … no one wants to deal with any kind of unwanted outreach from their perspective, but we’ve got to do these things to keep society going. Part of the onus is on the FCC to go after illegal robocallers and to make statements that their business is unacceptable and when, not if, they’re discovered, we’ll make them pay a price.
Utilizing the TRACED Act and other tools in our toolkit, we’ll continue to work with our industry partners to aggressively pursue and punish illegal robocallers. But we can’t put, so to speak, all ‘unwanted calls’ in the same bucket. Your members are doing a difficult and legal business, and part of that business is in fact being able to make those legal informational phone calls.
Many more industries, such as consumer banking, utilities and health care providers, do find themselves in businesses where time-sensitive information calls are important. And the FCC in December sought to protect consumers against the inadvertent blocking of legitimate informational calls really of every variety and to permit consumers to discover which of the calls that may have been blocked were legitimate and I am broadly supportive of that effort. In my view, the best way to work with regulators to help us distinguish between legitimate informational calls, even if intrusive in the moment, but nonetheless legitimate informational calls, and illegal robocalls.
Q. Another big issue for ACA members is the TCPA and the landmark U.S. Supreme Court 9-0 decision limiting the definition of an ATDS to exclude dialing from a stored list in Facebook v. Duguid. It looked similar to what the FCC had done in an order in 2015 that was struck down in court through litigation actually brought by ACA, so we’ve been long seeking clarity on the definition of an ATDS, and we were happy to see the decision. It provides some clarity going forward, although there are several areas of the TCPA that still have some ambiguity associated with them.
Are there any high-level thoughts you have on the ruling?
A. I am always glad to see when a long-running litigation issue becomes more settled. My view is time will tell if this is completely settled because of small potential for some noodling around the edges. But there is certainly a great deal more certainty than there was prior to the decision. I think that is just good for everyone.
Q. Right now the FCC is operating with one less commissioner. Have you heard anything on when the president might fill that role and are there any challenges with not operating with a full commission right now?
A. It’s conceivable that under different circumstances there could be some challenges, but I would say so far Acting Chairwoman Jessica Rosenworcel has done a great job in running the commission day to day. Most of my brief tenure has been on a four-member commission so it’s hard to have much of a basis for comparison, but I would certaintly say the commission has been operating very successfully since the transition of administration. I would also add that whatever issues may arise from operating with four commissioners have surely got to be eclipsed by operating during the pandemic. It’s very tough not to see people in person and in fact there are members of my staff I have not had the opportunity to meet in person.
As to when the president might fill that spot, your guess is as good as mine.
The commission has been able to touch on several issues and meet deadlines from Congress while at four commissioners. It’s not to say it’s not a priority of the administration, but it’s not a crisis.
We look forward to continued engagement to help you make your goals and keep away unnecessary regulatory burdens.
ACA’s meeting with Simington was a valuable opportunity to connect with leadership at the FCC and ACA is continuing to work with the FCC on TCPA issues, including a petition on call exemptions and call blocking and labeling.
ACA members can read more coverage from the Washington Insights Virtual Fly-In here: An Inside Look at Pending CFPB Issues at Washington Insights Conference. Find ways to get involved with ACA advocacy, including videos to tell your company’s story to legislators and regulators, here.