Friday, December 9, 2011

Coming Soon: Unwanted Solitications to Your Mobile Phone

The Telephone Consumer Protection Act ("TCPA").  The TCPA was passed in 1991 and placed limits on robocalls, phone solitications, and unsolicited faxes.  The current law prohibits companies from using robodialers to call your mobile phone. 

There is currently legislation proposing amendments to the TCPA pending in Congress.  The legislation is endorsed by the U.S. Chamber of Commerce, the American Bankers Association, the Air Transport Alliance, and the Mortgage Bankers Association.  The rationale is that they want to be able to call you about a security breach, fraud alerts, flight cancellations, etc.

The legislation narrows the definition of a prohibited robocall or autodialer (instead of broadening it).  It also provides that if you provide your mobile phone number to someone, that is equivalent to your providing consent to unsolicited phone calls.  Third, it would allow someone to call you to provide "information" - e.g. tell you about a sale at Nordstrom's this weekend, your expiring warranty on your Jetta, or say.... when are your gonna pay your bill?!

This week, the Attorneys General of fifty-four states and territories sent a letter to Congress urging amendments to proposed legislation. 

First, they argued that consumers should be specifically required to provide consent in writing - simply giving a business your phone number is not consent to be robocalled.  There are many reasons for this one of which is so the cost of the phone calls will not be passed onto consumers.  If you have a prepaid mobile phone (25% of all mobile phones) or minute limitations on your plan, these calls will eat up your minutes and pass the cost of these calls on to the consumer.

Second, they want the law to be clear that this new statute does not preempt or negate existing state consumer protection statutes.  Virginia actually has an unsolicited fax statute.  In 2009, Virginia also adopted limitations on robodialers being used in solicitations

Common sense changes.  Require written consent from consumers and don't overwrite state consumer protection laws.  What's wrong with that? 

So who were the two states who did not sign on?  Nebraska and Virginia

Now I've been frustrated with our Attorney General on a lot of things.  He's filed suits over greenhouse gas regulation, CAFE standards, healthcare, academic research, and made clothing revisions to the state seal, but this one really leaves me scratching my head because the Attorney General is supposed to be the top Prosecutor and Chief Consumer Protection Officer in the state.  While I've heard a lot about constitutional theory, state's rights, and the rights of businesses to operate free government regulation, consumer protection doesn't seem to be very high on his agenda.

Our Attorney General also opposed a proposed $20 Billion settlement proposed by the majority of Attorneys General to resolve the foreclosure debacle created by robosigning and fraudulent foreclosure practices because it was tantamount to "welfare." 

I find it hard to believe that there's something special about Virginia that fifty-four other Attorneys General did not consider when requesting these small changes to the TCPA.  While our Attorney General has always marched to his own drum, this one really puts us out there.  Virginians do not want unsoliciated calls to their mobile phones just as much as everyone else.

Next time you run into our Attorney General make sure you thank him for all of those new phone calls on your mobile phone.

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