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Internet Association Asks Court to Vacate Sweeping TCPA Rules

Beckerman: “Internet companies should not have to choose between engaging in necessary communication with their users and the threat of class action litigation.”

Washington, D.C. – Today, the Internet Association filed an amicus brief with the DC Circuit Court of Appeals, calling on the court to overturn the Federal Communications Commission’s recent TCPA Order. The Order exposes an unnecessarily broad swath of businesses, including Internet companies communicating with their customers, to the risk of frivolous class action lawsuits.

The Telephone Consumer Protection Act of 1991 (TCPA) was enacted to protect consumers from receiving unwanted calls from telemarketers and robocallers. Congress designed the TCPA to ensure that consumers do not get unwanted, randomly chosen calls in their homes.

Internet companies, including sharing economy services, social networks, and E-Commerce sites, often engage with their users through text message or even calls. Under the challenged TCPA Order, an Internet company that, through no fault of its own, sends a text message or calls a reassigned phone number can potentially be held liable for that text or call. For instance, if an Internet platform notifies users of a package delivery, that a car is waiting, or of a security breach by text message, it could potentially be held liable for a text sent inadvertently to a recycled cell phone number.

“Internet Association members respect the role that consumer protection plays in our society, but the TCPA was never intended to hold companies liable for sending their users text messages that people want and need,” said Michael Beckerman, President and CEO of the Internet Association. “Internet companies should not have to choose between engaging in necessary communication with their users and the threat of class action litigation. It is our hope that the DC Circuit will vacate the TCPA Order,” said Michael Beckerman.

The FCC declaratory ruling interpreted the TCPA in a way that expands its scope beyond any reasonable interpretation of Congress’s original intent. The ruling exposes any company using a modern phone system, including Internet companies simply attempting to communicate with their users, to a dramatically increased risk of frivolous litigation.

“In an unlawful attempt to respond to changing technology, however, the Commission has interpreted the TCPA in such a way that it now potentially reaches almost any form of electronic communication—a far more sweeping (not to mention unconstitutional) and ambitious rule than Congress’s much more modest focus on the specialized automated dialing equipment that telemarketers used in 1990…[T]he Commission’s Order rolls out the welcome mat for lawsuits threatening the innovative approach to communication that the Internet Association members promote and on which their business models depend,” the brief states.

“Retrofitting old legislation to new industries in ways not intended by Congress will cause uncertainty and will chill innovation and growth in the Internet sector. Internet companies need certainty that they can continue to engage in wanted communication with their users in beneficial and innovative ways,” concluded Abigail Slater, Internet Association Vice President of Legal and Regulatory Policy.

To read the full brief, click here.