In 1991, the Soviet Union still existed, gas cost $1.12 a gallon, and the Internet had a whopping one million users. It was also the same year that Congress passed the Telephone Consumer Protection Act. Technology has undergone changes that would have been unthinkable then. Understanding the TCPA, however, requires understanding the difference between the technological landscape of 1991 and the technology of today. Given the rate of technological change, the TCPA doesn’t always fit today’s technology. But guess what? It’s still the law and you can feel its effects even if you continue to wear shoulder pads with your suits and have those vintage velour tracksuits in your closet.
Too often, we see our fellow defense counsel defending TCPA cases in a proverbial vacuum by failing to educate the court about the important historical context in which the TCPA was enacted. Painting that longer view is critical to helping the court understand how this 1991 law should be applied today.
Seven major changes since passage of the TCPA:
- Cell phones – The early cell phones were often as large as bricks and just as clunky. When the TCPA was passed in 1991, only 3% of people in the United States owned cell phones. Today, 95% own cell phones. Cell phones have transformed from being an expensive novelty to an essential part of our daily lives. Various surveys have shown that 94% of respondents would give up sex for a week rather than their smartphone, 21% would give up shoes before giving up their smartphone, and 40% of millennials responded that they would rather lose their car than their smartphone. And, sadly, 17% would give up their best friend before giving up their smartphone. The ubiquity of cell phones in our lives has changed dramatically since the TCPA was passed.
- Landlines – In 1991, landlines were “lifelines” and over 90% of people relied exclusively on landlines. For most, the landline was not only their most important two-way communication device, it was their only two-way communication device.
- Text messages – When the TCPA was passed, text messages didn’t exist. (Gasp.) The sum total of text messages sent that year was zero. Today, trillions of text messages are sent and, for many, they are a principal means of communication.
- Mobile phone charges – The early cell phone plans had high usage charges that made extensive use cost prohibitive. Per minute charges for both placing and receiving a call meant that cell phones were used for only the most critical communications. Today, of course, there are many unlimited calling plans that allow callers to talk all they want – no matter how unimportant the call is.
- Autodialers – In 1991, autodialer technology was much more primitive than it is today. Telemarketers used random or sequential dialing to call every number in an area code, and, as a result, many businesses would have all of their lines tied up. Congress started receiving a slew of complaints—some from emergency responders—indicating that telemarketing calls bogged down critical telephone systems.
- Fax machines – Fax machines used special thermal paper that was expensive for the fax machine owner to supply and use. With the rise of internet fax services in the last few years, sending and receiving faxes is considerably less expensive.
- TCPA damages – The statutory damages amount of $500 per violation was originally thought to be necessary so that a consumer could recover a modest amount in small claims court. Today, TCPA cases are the second-most common case in federal court and sometimes result in settlements of tens of millions of dollars. Instead of small claims court actions, large-scale class actions are filed by plaintiffs’ attorneys intent on recovering massive damages and, of course, healthy legal fees for themselves.
This infographic helps illustrate a few of the changes outlined above:
(Infographic found in TCPA Survival Guide: The Rules Edition)
It's safe to say (as you read this blog on your mobile phone), that the technological changes of the past twenty-six years are important. While the concerns created by the technology landscape of the 1980s helped shape the contours of the TCPA, they are not as relevant today. The TCPA is still with us even though clunky cell phones with large antennas, expensive calling plans, and the big hair of the ‘80s are long gone. Understanding and adapting to the TCPA also requires an understanding of the problems that Congress tried to solve in 1991.
Three major concerns drove passage of the TCPA:
- The use of automated dialers, especially sequential dialers, created a dramatic increase in calls, including calls to police and emergency lines. Many businesses reported having their outgoing lines completely tied up because of sequential calls to their phone numbers.
- The calls at home were considered an invasion of privacy as expressed by Senator Hollings, a TCPA sponsor, when he stated that indiscriminate “calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall…. These calls are a nuisance and an invasion of our privacy.”1
- There was concern that fax advertisements and calls to cell phones constituted “cost-shifting” of the advertisement because the owner of the facsimile machine had to pay for paper and ink and, at that time, many cell phone users had to pay for incoming calls.
Of course, the TCPA has been amended and supplemented through FCC orders and regulations and court rulings since 1991. For example, the National Do Not Call Registry was created in 2003, followed by the Junk Fax Protection Act of 2005, which amended the rules against “blast faxes.” And the D.C. Circuit is expected to rule in the near future on the FCC’s now-infamous 2015 Order interpreting the TCPA. 2015 Declaratory Ruling and Order.
Notwithstanding these legislative, regulatory, and judicial efforts to keep the TCPA current, the technological changes in the telecommunications industry have been so rapid and revolutionary that what made eminent sense in the early 1990s might not fit today’s technology and communications. Given these changes, it is important to have guidance from experts who understand not only where the TCPA is today but also where it came from. You can download our TCPA Survival Guide: The Rules Edition for more information.
1Congressional Record – Senate Proceedings and Debates of the 102nd Congress, First Session. July 11, 1991, 137 Cong. Rec. S9840, S9874.