So as I have been saying for years now, the TCPA simply does not work to prevent the sort of scam robocalls that are driving Americans crazy.

The solution to the problem is so incredibly simple that it defies logic that Congress hasn’t acted on it–ban robocalls not based upon the technology used to send calls but based upon the actual content of the calls.

Notably the carriers are already deploying call blocking efforts focused on the content of calls–probably illegally–despite a complete lack of statutory authority from Congress to do so. But all litigants are forced to try their cases against scammers by proving–for some unknown reason–that they made their call using an ATDS or a prerecorded voice message.

So in steps the National Consumer Law Center–frequent advocates for a broad TCPA–flush with cash from all their recent TCPA settlement cy pres deposits. Per usual the NCLC is pushing for a broader TCPA, but in a new ex parte submission to the FCC they actually hit on a concept I agree with–look at that!–although not in a context I agree with.

In their new filing–available here NCLC ex Parte–the NCLC asks the FCC to clarify that scam calls do not fit within the exemptions the Commission just clarified with respect to prerecorded calls to landlines.

TCPA.World readers will recall that the FCC previously exempted all non-marketing commercial messages to landline phones made using prerecorded calls. But the TRACED Act required the FCC to consider limits on those exemptions–which it did in an order from December, 2020 (which has yet to take effect.)

The FCC’s new limits would only allow 3 commercial calls per month made without consent and allow a few more calls in some limited contexts.

The NCLC has now asked–via its ex parte–that the FCC to exempt from that exemption scam calls and text messages.

So this ask–which again, I agree with in principle–has a few strange components. In the first place, the NCLC asks the Commission to exempt scam text messages–but the TRACED Act review the FCC undertook only applies to landlines, so not sure what the NCLC is talking about with respect to texts. But even as to calls to landlines it is unclear that the “commercial purpose” exemption ever applied to scam calls to begin with– is a scam a “commercial purpose”?

Perhaps the fix is to add the word “legitimate” into the title for each exemption.

But more to the point, exemptions to exemptions should not have to be added to address fraud. Fraud over the nation’s phone lines should be outright banned. Period. Full stop. And the NCLC’s ex parte makes a compelling case for this:

• In the first three quarters of 2021, there were more than 2.1 million separate reports of fraud made to government agencies.
  • Over a third of these reports – 540,327 – were the direct result of contacts made through a telephone call.
  • Another 290,551 reports of fraud resulted from texts to cell phones.
  • The recipients of those scam calls had $529 million stolen from them in the first three quarters of 2021, an increase of 64% over the loss of $323 million during the first three quarters of 2020.12The median amount of money lost through these telephone scams during the first three quarters of 2021 was $1,250.
  • Over a third of the scam victims were over age 60.
  • Losses to victims over age 80 were the highest amounts, with a median of $1,300 of stolen funds per person in this age group, as compared to $650 in the next highest age group (age 70 to 79).

Great. So why not just ban such calls outright and leave legitimate calls made by legitimate companies out of the mix?

Again, the TCPA is an abomination because it holds legitimate companies liable for merely using the same technology that scammers choose to use–even though the message might be completely legitimate and honest. On the other hand, a scammer might get away with their totally fraudulent call just because they didn’t use technology governed by the TCPA. Its just bizarre.

While I applaud NCLC’s sudden focus on the real problem–i.e. scam calls–I hope it signifies a longer term shift away from their endless campaign against low balance alerts and prescription refill reminders–which they label as “robocalls.” And more broadly I hope they stop picking on legitimate callers and focus on the real bad guys. If that happens then finally we can all get on the same team and start making some progress here.

The robocall epidemic isn’t going to end until Congress passes a law that focuses on the CONTENT of messages and bans fraud and scam calls. Thereby giving valid statutory authority to the carriers to block fraudulent calls and empowering government and private litigants alike to get after the real bad guys.