Sen. Durbin Proposes Bill to Close Gap in the FCC’s Do-Not-Call Authority
Last week Senator Dick Durbin (D.-Ill.) proposed Senate Bill 3991, the ‘‘Protecting American Consumers from Robocalls Act’’, to amend the TCPA to expand the Federal Communications Commission’s authority to apply its Do-Not-Call regulations.
The primary change proposed by the legislation is to remove the word “residential” from the TCPA’s grant of authority to the FCC to establish the national Do-Not-Call registry. As we previously reported, in its December 2023 Order, the FCC expanded its rules to declare the marketing text messages sent to mobile phones are required to scrub against the national registry unless the sender has prior express written consent. As we also noted at that time:
Since its creation of the registry, the FCC has always permitted mobile phone users to register their phone numbers in the database. However, given the plain language of the TCPA chosen by Congress (i.e. the FCC was authorized to “protect residential telephone subscribers’”), there has been good reason to debate whether the FCC actually possessed the delegated authority from Congress to enforce any penalties against marketers for calls made to wireless telephone numbers registered in the database. For those that are textual purists, the TCPA’s statutory text and legislative history repeatedly differentiates between “residential” and “mobile” subscribers in a manner that implies that Congress’s intent in 1991 was to authorize the creation of a database that would protect against marketing calls that disrupted families and tied upon the home phone line. There is little indication that Congress intended for the database to include mobile phone numbers at that time.
Senator Durbin’s introduction of Senate Bill 3991 is further evidence that, despite its recent rulemaking, the FCC likely lacks the authority to apply its Do-Not-Call regulations to calls or text messages to mobile phone numbers. Indeed, it is obvious that there would be no reason to remove the word “residential” as a limiter on the FCC’s authority if, as the FCC has presumed, the word actually provides no material limitation on the agency’s authority. While Senator Durbin’s legislation may ultimately expand the FCC’s authority if adopted, it currently serves as a powerful argument that the FCC’s expansive interpretation of the Do-Not-Call regulations is on shaky legal footing. (And, for those of you who are paying close attention to the state of administrative law in the U.S., this could well prove important if conservative justices on the Supreme Court eliminate or curtail Chevron deference, as many court watchers predict. See, e.g., Amy Howe, Supreme Court likely to discard Chevron, SCOTUSblog (Jan. 17, 2024, 6:58 PM), https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/)
In addition to expanding the FCC’s Do-Not-Call authority, the legislation would also make clear that consumers have a right to sue under the TCPA for the first unlawful call or text message, revising language that currently establishes a private right of action only for those individuals who had received “more than one telephone call within any 12-month period”. If enacted, the legislation would also clarify the statutory damages provision, which currently provides for an award of “up to $500 in damages for each such violation,” to remove the “up to” qualifier.
The bill has received support from eight co-sponsors, including Sen. Markey (D-MA); Sen. King (I-ME), Sen. Smith (D-MN), Sen. Welch (D-VT), Sen. Sanders (I-VT), SEn. Hirono (D-HI), Sen. Duckworth (D-IL), and Sen. Lujan (D-NM).
