[Authors Note: The following is just my opinion. It does not represent the views of my firm, my partners or my clients. But I happen to think I’m right on this, so I’m going to share it with TCPAland.]

The National Consumer Law Center (“NCLC”) submitted perhaps the most comprehensive pro-consumer comment in response to the FCC’s recent Public Notice seeking comment on the scope and architecture of the TCPA.

The Comment takes on an ambitious project–convincing the FCC that legitimate American businesses-are primarily responsible for the scourge of robocalls that are plaguing this country. By extension the NCLC urges that the FCC must continue to read the TCPA broadly so as to encourage more lawsuits against these businesses to keep their calling practices in check. Unfortunately the NCLC resorts to questionable and cherry-picked data–as well as to some unproven hearsay claims–to support its position.

First, it is important to understand why the NCLC went on the attack against legitimate American companies in the first place. Why not just agree with the common experience of most Americans that robocalls are terrible pre-recorded scam calls launched by fly-by-nights and overseas scoundrels? Why accuse most every bank in the country of being a prolific robocaller when–as shall be seen below–their most common “robocall” are account alerts that don’t bother anybody? Why make a villain of lenders providing account information to consumers?

The answer is nuanced but ultimately comes down to a simple fact–the TCPA’s private right of action does nothing to prevent true robocalls. The statute can be read as broad as you’d like but illegal scammers and phishers–hiding their identities and often launching calls from overseas–do not obey the laws and will keep on coming no matter how the TCPA is interpreted. These people fear nothing but massive governmental or carrier-level intervention and private lawsuits brought in the United States mean nothing to them. Nothing at all. Indeed, the consumer-rights lawyers out there–with very few exceptions–will not even waste their time trying to find and sue them. So the bad guys get away. And American businesses get chased around the mulberry bush with TCPA cases over and over again.

In order to keep the TCPA nice and broad, therefore, the NCLC has to convince the FCC that everything I just wrote is false. Otherwise the FCC might narrowly-read the TCPA recognizing that it does nothing but ensnare legitimate American business in endless lawsuits while having virtually no impact on the true bad actors. (Indeed, the clearest proof that a “broad” TCPA does nothing to prevent “robocalls” is contained in NCLC’s own data demonstrating that “robocall” complaints doubled after the FCC massively expanded the statute in 2015–but we’ll get to that in a second.)

So let’s dig in.

In its comment–available here NCLC – TCPA Comments— the NCLC begins by characterizing the questions before the FCC as “momentous” and noting that the FCC’s interpretive ruling on the TCPA will “impact the daily lives of hundreds of millions of American[s].”  It then makes the fairly uncontroversial assessment that “robocalls”–whatever that means–are both unwanted and on the rise.

The Comment provides the chart below as proof:

Notably, the chart shows a massive increase in robocalls following the FCC’s 2015 TCPA Omnibus ruling–a ruling that greatly expanded the reach of the TCPA. If a broad TCPA is effective and necessary to prevent robocalls, therefore, one would have expected that trend to decrease rather than increase.

But there are larger points to be made here.

The data in this chart is pulled from something called YouMail. If you’ve never heard of YouMail and wonder who died and made it king of defining and identifying robocalls, you’re not alone. According to NCLC’s Comment, however, YouMail is a “call-blocking app provider” so I guess that makes it a reliable source of robocall data?

But let’s assume, for a moment, that YouMail is accurate and tracking….something. That still leaves the question of what a robocall is according to YouMail and how, if at all, that definition tracks with the reading of the TCPA that the NCLC prefers. Unfortunately those questions are largely unanswered in the Comment. So the value we derive from this chart is that YouMail is picking up a lot more of something it calls “robocalls” and they have increased since the Omnibus ruling in 2015.

Hmmm. Ok.

Nonetheless, NCLC boldly asserts that with this YouMail data “we know well enough who is making the overwhelming majority of robocalls…” To put a fine point on it the Comment states: “Banks, credit card companies, retailers, and debt collectors, all of whom were collecting debts, according to the robocall blocker, took seventeen of the top twenty spots.”  The Comment goes on to identify numerous legitimate and well-respected American businesses –by name–in a chart that I will not reproduce here. It arrived at these names, apparently, by looking up the phone numbers identified on YouMail’s “robocall” index and calling them to see who those numbers belonged to.

Hmmm. Ok.

And then things get really squirrelly–in my opinion. In the only piece of the Comment shedding light on what a “robocall” might be according to YouMail, the NCLC supplies the following chart:

So 28% of YouMail’s “robocalls” are account alerts. That’s interesting and weird. As even the NCLC Comment concedes: “Very few of the calls in the first category—Alerts and Reminders—are blocked.”  See Comment at p. 6. But those are the very sort of messages that the businesses NCLC contends are the top “robocallers” are most likely to send. So NCLC is complaining most loudly about American businesses who are sending the “robocalls” that bother consumers the least…

Hmmm. Ok.

On the other hand, NCLC concedes that “[u]sers of the call-blocking program routinely block all of the calls in the bottom two categories—Telemarketing and Scams.” See Comment at p. 6. So doesn’t that mean the “true” robocalls causing all the trouble are the ones that are telemarketing and scam calls that are–contrary to the NCLC’s narrative–the very calls that the businesses identified in the Comment are least likely to send?

Hmmm. Ok.

Indeed, the only ounce of information directly addressing consumer responses to debt collection calls in the Comment comes from unspecified “information [that] was provided by Alex Quilici, CEO of YouMail”–yes, I’m serious. That’s it. Relying on something Mr. Quilici apparently said to the NCLC (over the phone?) the NCLC Comment reports that “most” of these calls are blocked by their recipients.

Well. There you have it. Based on the word of the CEO of a single call blocking app, “most” debt collection “robocalls”–whatever that means– were blocked by their recipients, so legitimate American businesses must be to blame for the scourge of robocalls plaguing this country and we need more TCPA lawsuits.

Convinced yet?

Wait, there’s more.

Take the point made at page 12 of the comment. There NCLC provides this handy chart:

That seems pretty convincing actually. Robocall complaints have gone up 100% since 2015. YouMail’s “robocall” count has gone up 100% since 2015. But TCPA lawsuits have only gone up 19% since 2015. So maybe we do need more TCPA lawsuits.

But wait a minute. What if we looked prior to 2015?

Well here’s the data: According to the FTC’s website there were 1,734,603 “robocall” complaints in 2014 and 2,182,158 “robocall” complaints in 2013. By comparison there were 1,904 TCPA lawsuits in 2013 and 2,558 TCPA lawsuits in 2014. The FTC had 4,501,967 complaints in 2017 and NCLC (somehow) computed 4392 TCPA filings that year.

Using the FTC’s figures and accepting NCLC’s calculation of TCPA filings, therefore, we’ve seen a 106% increase in robocall complaints between 2013 and 2017–that is indeed a large increase–but TCPA lawsuits increased 131% during that same timeframe. So TCPA lawsuits actually outpaced complaints to the FTC during that timeframe.

Even using the more favorable (for NCLC) metrics of 2014 onward, however, we see a 160% increase in complaints between the nadir of such complaints in 2014 vs 2017 figures. TCPA lawsuits lagged behind with a “mere” 72% increase during that timeframe.

But zooming out further, matters get even more stark. For instance news reports from 2010 suggest annual complaints to the FTC of about 780,000 per year.  That year there were 354 TCPA filings by my research. So whereas robocall complaints to the FTC increased 5.77x from 2010 to 2017, TCPA lawsuits increased 12.4x–over twice as quickly.

In short, whether TCPA lawsuits are outpacing or lagging behind robocall complaints turns on what arbitrary start date you select.

The logical flaw in all of this analysis however, remains the assumption the unfounded assumption that “robocalls”–whatever that word means to you– are prevented by the TCPA. Although NCLC fights hard to link “robocalls” back to legitimate American businesses collecting debts who are subject to lawsuits by the Plaintiff’s bar neither the data, as shown above, nor the common sense experience of the average American supports that conclusion.