Updating the TCPA for Modern Technology: John Couvillon Comments to the FCC

The Telephone Consumer Protection Act (TCPA) was “a well-intentioned law passed by Congress in 1991 to combat commercial telemarketing calls at a time when cell phone usage was much more expensive” but it hasn’t “kept up with the times and changing technologies,” according to Insights Association member John Couvillon, president of JMC Enterprises of Louisiana/JMC Analytics and Polling. He recently shared comments with the Federal Communications Commission (FCC) on the post-court-decision broad TCPA rewrite coming up, following up after a call with both FCC Commissioner Michael O’Reilly and Rep. Garrett Graves (R-LA-06).

Couvillon noted that the FCC seems to not appreciate “the difference between legitimate public opinion research and commercial telemarketing calls, when in fact the genesis of the 1991 TCPA legislation was commercial telemarketing calls.”

“While cell phone calls are still permissable,” Couvillon continued, the 2015 TCPA rules require calls to cell phones “be handed dialed (due to an overly strict definition of what an autodialer is). The only ‘benefit’ of this ruling is to needlessly increase the cost of public opinion research (beacause live dialed calls are much more expensive than automated calls), thus putting it further out of reach for interested citizens of leser means — given the ballooning costs of political campaigns which everyone loves to bemoan, shouldn’t there be cheaper options available to the public, thanks to relatively recent technology?”

Couvillon also noted the inconsistent FCC rules, including carveouts for government calls while establishing “preferential classes of protected speech” which put the FCC “in the ridiculous business of policiing speech.” Unless the FCC carves out survey calls, “since these carve outs are an implicit admission by this Commission that there are reasons cell phone needs to be called through automated means,” then there shouldn’t be carveouts for any group and the playing field can be level.

Rather than pursuing the proposed database of reassigned numbers, Couvilon recommended clarifying “consent” with a “reasonable and cost-effective way for phone vendoers to obtain consent (for example, an opt-in/opt-out question).”

He also points to the attempt by Rep. Lee Terry (R-NE) back in 2011 to exempt non-telemarketing calls from the TCPA, which would have remained “consistent with the original intent of the TCPA as passed in 1991. Even though a public outcry thwarted this reasonable compromise, the fact remains that survey calls are still being made, just (to comply with the 2015 ruling) with more expensive live operators who must hand dial each number.”

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