Michael Daly Discusses Likely TCPA Developments in the Year Ahead

Philadelphia partner Michael Daly was quoted in a Law360 article titled “Cybersecurity & Privacy Policy To Watch In 2019,” regarding a segment on the Telephone Consumer Protection Act. Litigation under the TCPA has seen class action plaintiffs in growing numbers seek advantage in the unclear statutory language and the potential for uncapped penalties from $500 to $1,500 per violation.

The article posits that relief may be in sight for companies as the FCC is expected to issue declarations in the coming year that could help narrow liability under the decades-old law.

"The TCPA is in an unprecedented state of flux,” according to Michael, “and that is saying something, given that the regulatory approach to the TCPA has never been marked by consistency or clarity.… In 2019 the FCC will have an opportunity to provide predictability that is much needed and long overdue."

The FCC is likely to address issues created by the D.C. Circuit's March ruling finding the commission's broad definitions of "automatic telephone dialing system" and "called party" under the statute were unreasonable and arbitrary. For now, the issue is in the hands of the FCC, which has solicited public comment on these topics and separately voted in December to create a reassigned number database to help ease liability and again make an effort to define these terms.

The FCC's move to answer any of the crush of outstanding questions under the 1991 statute has the potential to "go a very long way toward reducing predatory litigation and focusing our attention on the scam artists that the statute was really meant to address," Michael concluded.