Love em or hate em, if there has been a single driving force behind the expansion of the Telephone Consumer Protection Act (“TCPA”) over the years it has been the National Consumer Law Center. (“NCLC.”)  And the true anti-Czar of TCPAworld is, without question, NCLC Senior Counsel Margot Saunders who carries the NCLC’s water on TCPA issues.

Today Ms. Saunder’s testified before the Senate Subcommittee on Communications, Technology, Innovation and the Internet to discuss the TCPA and robocalls, leading off with this remarkable statement:

The TCPA is straightforward and clear.

-Margot Saunders, April 11, 2019

The TCPA is an unusually confusing statute.

-Hon. Judge F. Dennis Saylor IV, Judge, D. Mass. April 9, 2019

Good lord.

-Eric J. Troutman, Czar of TCPAWorld, April 11, 2019.

As you can see, when she isn’t ducking my interview requests, Ms. Saunders is out pushing the NCLC’s narrative that legitimate businesses are behind the scourge of robocalls in this country. Its an easy sell–people hate robocalls and are looking to blame someone real and with deep enough pockets to satisfy the bill. But is it true?

Let’s dive in to Ms. Saunder’s testimony–which you can read here Saunders Testimony to Congress— and find out.

YouMail’s Data in the Spotlight

Relying heavily on statistics from YouMail’s sensationalist Robocall Index, Ms. Saunders testified to Congress that “[t[he majority of robocalls made every day to our home phones and our cell phones are not overt scam calls, but calls made by so-called “legitimate businesses.”‘

So-called? Hmmm.

Setting aside that clear nod to TCPAworld content–much appreciated– the question remains, what is the Robocall Index, and can it be relied upon to underpin such critical–and critical–testimony regarding American business?

The Robocall Index is published by a call-blocking app called YouMail. As I have repeatedly quipped, to a hammer everything looks like a nail and to a robocall-blocking app everything looks like a robocall. Alex Quilici–the CEO of YouMail–is a great guy and has already told me that the Robocall Index does not track true robocalls–it tracks high volume calling patterns from particular numbers. But that is not the same thing as tracking robocalls.

So what YouMail’s data really tracks is mass calling from a single phone number. That is, large traffic calls that are not spoofed. What a surprise that such legitimate calls are probably coming from legitimate businesses.

But this is the same trick John Oliver pulled. Just because a lot of calls are being made doesn’t mean that the calls are “robocalls.” And just because YouMail’s data is called the “Robocall Index” doesn’t make it so either. There are no industry standards or oversight out there–no one is monitoring YouMail to determine whether it is really tracking robocalls–what is a robocall anyway?– or that it is accurately reporting what it is finding.

Indeed, no one is fact-checking YouMail at all. Except me.

As luck–or careful planning–would have it, the Squire Patton Boggs Unprecedented Podcast team is set to interview Alex Qulici of YouMail today about the very data Ms. Saunders testified regarding before Congress today.

Well, look at that. Someone is doing their homework. I’ll be sure to ask him how YouMail can tell whether or not a call is a robocall, and maybe he can explain why rival call blocking app manufacturer Hiya has a very different take on robocall volume. (Hiya’s CEO Alex Algard will be on our podcast as well. At the same time. Because fun. )

But circling back  to Ms. Saunder’s testimony, she continues: “[m]ajor American corporations, many of which are household names, are a large part of the cause of the proliferation of robocalls that plague Americans every day.” Subtle.

She really did not hide the ball here. Instead, she keeps hammering away:

The majority of robocalls are made by, or at the behest of, major American corporations….Debt collection callers comprise nineteen of the top twenty robocallers in the United States

-Margot Saunders, Testifying Before Congress, April 11, 2019

Again, her sole source for all these statements? YouMail’s Robocall Index. Yet, Hiya’s Robocall Radar demonstrates that only 2% of unwanted robocalls are debt collection calls.

Hmmmm.

Anyone else want to dig into this discrepancy? I know I do. You certainly won’t want to miss next week’s Unpredecented podcast episode.

Click-to-Dial Systems in the Crosshairs

Moving on, Ms. Saunders crushes click-to-dial products as being just as bad as robocalls:

Perhaps the most brazen attempt to evade the TCPA’s protections against autodialed calls to cell phones is clicker agent calling systems. These systems are entirely automated, but insert a human “clicker agent” into the process. These human clicking agents do not participate in the calls, and simply have the job of repeatedly clicking a single computer button, which sends telephone numbers on an already created list to an automated dialer in an another locale.

-Margot Saunders, testifying to Congress, April 11, 2019

But if there’s one thing courts can agree on in TCPAWorld, its that manually-launched calls are not subject to the Act. Nonetheless, Ms. Saunders points to one example of click-to-dial run amock. She cites to Hilton Grand Vacations Co. purportedly using a clicker agent system to make 56 million calls to cell phones to sell vacation packages, and
then claiming that the TCPA did not require consent.

I’ll give her this, she can pick her stories.

Those of you using click-to-dial software you should pay close attention to how Congress receives these remarks.

Request to Clawback Presumed Express Consent Rules

The scariest part of her testimony–from my perspective–was her challenge that a consumer does not provide “express consent” merely be supplying their phone number to a caller.

In Ms. Saunder’s words: “the FCC has explicitly allowed consent to be presumed whenever consent was provided in the original credit contract with the creditor or the
seller… Providing a telephone number when applying for credit hardly constitutes express consent to be contacted months or years later by a debt collector.”

The right to lawfully contact a consumer who has provided a phone number using efficient dialing technology is TCPA bedrock and the foundation upon which call centers operate. And this has been the case for over a decade. It was disheartening, although perhaps not surprising, to see the NCLC demand that rule be turned on its head.

Nothing in any of the current legislation before Congress has shown any intention to strip away the protections of the FCC’s presumed express consent rule. We’ll let you know if that changes.

A Strained Defense of TCPA Plaintiffs and More Criticism of Legitimate Business

Ms. Saunders ended her remarks where she began them–by chastising businesses that are facing multiple TCPA suits–as if it were their fault they are preyed upon by consumer protection lawyers looking for a payday in often-meritless suits.

But before concluding, Ms. Saunders also paused to defend TCPA plaintiffs and to point out that they are only filing suits because they have been victimized. Hmmm.

Typically, consumers bring individual TCPA suits only after hundreds, or even thousands, of illegal calls interfere with work, interrupt family time, or infringe upon the consumer’s solitude.

-Margot Saunders, testifying before Congress, April 11, 2019

Oh dear. I mean, that’s basically perjury in my opinion.

There is no ‘typical’ TCPA suit but, as anyone who has handled a sizable volume of these cases knows– they are rarely brought by consumers who have received hundreds or thousands of calls. Most of these suits involve a few dozen calls or less and the “typical” TCPA class action involves a handful of calls–indeed, I have handled many such suits that involved only one or two text messages or calls.

And overlooking that American businesses are held hostage to this statute–which is impossibly vague and therefore impossible to comply with– Ms. Saunders argues: “Lost in the rhetoric is the fact that many of the same corporations are violating the same law while ignoring the same pleas for the calls to stop. It seems that corporations have made the business decision that ignoring the TCPA is more profitable than compliance.”

Ridiculous.

While I cannot speak with authority as to every American business out there, every single business I have ever represented has sincerely tried to comply with the TCPA and took compliance with the law seriously. TCPA violations-when they do occur–arise out of: i) shifting and unclear standards; ii) the inability to detect recycled numbers; and iii) inadvertent human error, especially around revocation.

The idea that legitimate companies are making the “business decision” to violate the TCPA is laughably uninformed. And testimony to that effect is simply unfounded and dangerous. But that’s just one fella’s opinion I suppose.