Hey, TCPAWorld!

By now you, our dedicated followers, are entirely familiar with R.E.A.C.H. (Responsible Enterprises Against Consumer Harassment) and its lofty goals in advocating for industry players seeking to engage with consumers in compliance with the TCPA. If you aren’t, check out it’s website. See REACH.

That being said, Margot Saunders of the National Consumer Law Center submitted an ex parte notice to the FCC (the “NCLC Letter”) on behalf of a slew of consumer organizations that grossly misrepresents, and entirely fails to address the merits of, REACH’s May 9, 2023 amended comment to the FCC (the “REACH Letter”). See NCLC Letter, Joint Consumer Commenters Ex Parte 1-14-25.pdf; REACH Letter, Amended Comment to FCC.05092023.pdf.

Indeed, the REACH Letter explained the “lead generation loophole”—a loophole through which lead generators may sell consumers’ data an indefinite number of times over an unlimited time period.

In response, REACH took the following position:

The underlying problem in the lead generation industry is not the transfer of consent in the first instance, but rather the endless and unlimited transfer of consent. The Commission should first regulate that activity rather than banning it as a first measure.

REACH Letter at 9. In essence, REACH argued that it was unnecessary to shut down the entire lead generation industry in response to a few bad actors.

Specifically, REACH recommended the adoption of its standards—which are “designed to assure that every call made to a consumer from a good or service provider is an anticipated and welcomed call” and one “to which the consumer has provided express written consent”—and requested that the Commission provide a safe harbor to companies that choose to comply. REACH Letter at 2.

Despite REACH’s clear position as an ally in the fight to protect consumers, the NCLC Letter extrapolates a portion of the REACH Letter explaining the problem of the lead generation loophole and presents it as representative of REACH’s position:

“R.E.A.C.H., which describes itself as an organization filing on behalf its ‘direct-to-consumer marketing, lead generation and performance marketing members,’ admitted in its comments that lead generators are responsible for a ‘meaningful percentage’ of entirely fabricated consent agreements. R.E.A.C.H.’s comments provide particularly telling information about how the lead generator industry works to facilitate telemarketing robocalls.”

NCLC Letter at 3 (quoting REACH Letter at 1-6) (emphasis added).

Instead of addressing the merits of REACH’s proposed solution, the NCLC Letter wields this letter as representing some admitted blameworthiness of lead generators in the industry. In reality, however, REACH members “are limiting themselves in ways others in the industry are not” and “risk losing market share to bad players” in service of consumer protection. REACH Letter at 4. “While it is easy to cast blame on the various players in the lead generation industry,” the NCLC Letter conveniently overlooks the fact that “actors in this space are not actually acting in an illegal manner”—a fact REACH repeats. REACH Letter at 9 (emphasis added).

In fact, REACH places the blame for this problem on poor regulation, emphasizing that lead generators’ “conduct has been enabled—one might say cynically encouraged—by an outright failure of regulators to recognize the root of the robocall problem and attempt to address it.” REACH Letter at 9 (emphasis added). This problem can therefore be solved via regulations that create new incentives for such companies—i.e., by adopting the REACH Standards and creating a safe harbor for compliant companies. It is this ultimate conclusion that the NCLC Letter fails to tackle.

Until next time.