As the Courts seek to expand the reach of the Telephone Consumer Protection Act (“TCPA”), scam calls–which are not meaningfully thwarted by the TCPA–continue to expand at record pace. Indeed, a recent article in the Washington Post suggests that nearly half of all calls will be illegal spam calls by next year.  And, as a recent  comment to the FCC shows, robocalls have been exploding despite the FCC’s 2015 expansion of the TCPA. 

There can be little question that the Ninth Circuit Court of Appeals’ extraordinary ruling in Marks v. Crunch was animated by a quixotic fascination with thwarting  so-called “robocalls.” The previous FCC administration’s misguided, and now reversed, 2015 TCPA Omnibus Ruling was likewise aimed at cutting down on such calls.  But–as I’ve written time and again–such rulings merely exposed legitimate American businesses to predatory lawsuits, and do little to nothing to cut down on scam calls. The proof is in the pudding. Scam calls are exploding right along with class action lawsuits. American businesses get hurt, consumers lose trust, and phones keep right on ringing. Only the lawyers make out. Tale as old as time…

The reason is simple– the TCPA is enforced by private lawyers who want to recover fees. These lawyers cannot find the true wrong doers–generally off shore spammers who spoof numbers and call with impunity–so they settle for suing legitimate American businesses, often for made up offenses. The result is enormous fee bills for businesses that cannot afford to fight these suits to conclusion and end up settling the cases, often for millions of dollars. And the scam callers keep  right on attacking us, undeterred and undetected.

Its a vicious cycle, and one that really needs to come to a close.  Frustratingly, before Marks it looked as if it might. The current FCC administration, lead by former telecommunications attorney Ajit Pai, really seems to “get it.” Pai’s FCC focuses on carrier-level technological solutions holding real promise. Plus the FCC–unlike private litigants–has shown a willingness to go after the true bad guys, even if there’s no large fee award at the end of the rainbow. That 1-2 punch holds the keys to robocall salvation. And while the FCC is expanding and incentivizing technological tools and enhancements to stop scam calls, it is also expected to scale back the reach of the TCPA– and the swarm of private class litigation it enables– as the agency seems to recognize the statute has little to no impact on preventing unwanted spam calls. If anything, a broad TCPA correlates to more unwanted robocalls, not less.

As I wrote on Friday, however, the Marks case complicates this balanced approach and assures more unwanted nuisance lawsuits will pester legitimate businesses with unnecessary expense, while doing nothing to prevent true scam robocalls. Indeed, by depriving legitimate callers of avenues to reach consumers, the Marks court has inadvertently assured that a larger percentage of calls to consumers will be scam calls leading to further consumer mistrust. Worse still, cases like Marks further the false narrative that “robocalls” can be prevented via private lawsuits. Folks, look around. That car is a rusted clunker that isn’t getting us anywhere.  And so long as legitimate businesses fear litigation and reprisals they’re unlikely to partner with industry and the carriers to develop workable robocall solutions.

Its time for the courts to recognize the cold hard truth– the TCPA does not prevent scam robocalls. It prevents legitimate calls that consumers expect to receive. It chills free speech and has created the greatest cash grab in litigation history.  The courts should really stand down now and let the expert agency trusted by Congress to implement and interpret the TCPA do its necessary work. Let’s all work together for a change–follow Pai’s lead–and see if real progress on scam call prevention isn’t possible. I’d really like to feel safe answering my phone again–wouldn’t you?