A Telephone Consumer Protection Act (“TCPA”) bill first introduced in the United States Senate has been given new life as Congress and federal agencies continue to focus on curtailing the delivery of unsolicited calls to consumers. Cited as the “Protecting American Consumers from Robocalls Act” (“TCPA Bill”), the regulation seeks to, among other things, expand the private right of action for calls made in violation of the TCPA. Below, we discuss the TCPA Bill in detail, its effects on the TCPA’s rules if it becomes law, and its implications for companies that deliver telemarketing calls.
Proposed Changes to the TCPA’s Rules
Largely due to advancements in technology, including the use of artificial intelligence, the TCPA Bill aims to expand the protections afforded to call recipients under the TCPA. Specifically, the TCPA Bill would amend the TCPA’s rules to: (1) allow businesses to add their telephone numbers to the National Do Not Call Registry (“NDNC”); (2) update the definition of what constitutes an automatic telephone dialing system (“ATDS”); and (3) allow consumers and businesses to bring private rights of action after receiving one unsolicited telephone call to numbers listed on the NDNC. When the TCPA Bill was initially introduced in March 2024, it did not include any revisions to the definition of ATDS. The new version of the TCPA Bill amends the current definition of what constitutes an ATDS as follows: “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator or a list of telephone numbers, and to dial such numbers successively without human intervention.” The addition of this language is significant because companies that utilize software to deliver telemarketing calls to telephone numbers stored in a database would be in violation of the TCPA’s revised ATDS definition.
The TCPA Bill also amends the TCPA’s Do Not Call regulation to eliminate the requirement that consumers receive two calls within a 12-month period in order to bring a private right of action. In other words, if the TCPA Bill is written into law, a single unsolicited call to a telephone number on the NDNC would be actionable under the TCPA. Notably excluded from the TCPA Bill is any language amending the TCPA to explicitly include text messages. As our readers know, the question of whether text messages give rise to a private right of action under the TCPA has been hotly contested recently in courts nationwide.
Should Telemarketers Prepare for Changes to the TCPA’s Rules?
It is important to note that the TCPA Bill is in its very nascent stages as it was just reintroduced. While it is too early to determine whether the bill will become law, it would be prudent for telemarketers to prepare accordingly.
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