Aww the Phone Shopper Safety Act.
Ostensibly designed to stop robocalls, books have been written in honor of its strangeness.
Chief Justice Roberts as soon as remarked that it’s the oddest statute he’s ever seen.
And I’ve constructed one of many nation’s hottest authorized blogs by doing nothing greater than synthesizing the gorgeous variety of choices the imprecise statute produces.
It truly is the right automobile for havoc.
Huge statutory damages. Obscure provisions. Uncapped class actions. An unduly lengthy statute of limitations.
However maybe worst of all– a historical past of retroactive modifications which have caught callers in entice after entice after entice.
As an example, when the statute was first conceived it was nearly actually designed to use solely to random-fire advertising messages. However the TCPA was expanded in drips and drabs in piecemeal style, with every new extension dragging in increasingly more callers who turned liable solely lengthy after the challenged conduct happened.
People had been getting sued in multi-billion greenback lawsuits for speech that was authorized on the time it was made and solely turned unlawful after-the-fact. Wild instances.
So whereas the TCPA was designed to stop a slim swatch of conduct, it ended up turning into a money-printing machine for plaintiff’s attorneys. Certainly, this outstanding increasing mushy little statute has made extra plaintiff’s attorneys wealthy than some other enactment in our nation’s historical past.
It’s maybe becoming, then, that every one TCPA legal responsibility might have simply been fully cleaned in a most sudden and retroactive and supreme type of method– an increasing universe that abruptly collapsed into singularity with out warning.
As I simply reported, a Courtroom in Louisiana has held that the TCPA–seemingly the crown jewel of the federal authorities’s robocall response— is useless. Or no less than, was useless. Nicely, technically unconstitutional however in frequent parlance- it was useless.
For 4 and a half lengthy years.
And sure, the Supreme Courtroom simply breathed some life again into it, however throughout its lengthy chilly zombie-like state from November, 2015 to July 6, 2020 the TCPA was merely unconstitutional.
That signifies that for all of these years– the true peak years of the robocall epidemic– all of these billions and billions of probably unlawful calls are actually completely authorized. Or no less than, inactionable.
Billions and billions of calls. Trillions in potential publicity when factoring within the TCPA’s $500-$1,500.00 per name statutory damages.
In a wierd method, this could be the most important wealth switch in historical past. Once more, actually trillions in combination potential publicity simply bought wiped off of the books (not that it was ever really on the books) of firms nice and small.
There’s something so poetic to it. 4 and a half years the statute was unenforceable. Nearly the exact size of the TCPA’s acknowledged statute of limitations. Its as if each American enterprise–dwelling so lengthy underneath the fear of arbitrary and unjust legal responsibility of the strictest and most extreme kind– was simply granted a whole reprieve.
A second likelihood to have interaction with shoppers with out the Sword of Damocles hanging over their heads.
Nicely, that’s the sunny daydream anyway.
In fact, that is simply ONE district courtroom opinion. It was a considerate determination. Nicely briefed and effectively analyzed. It will likely be adopted by many courts. Sadly, nevertheless, it’ll even be rejected–most likely scornfully– by others.
And so the TCPA will lumber on in its method. The promised reprieve from the insanity will simply be a mirage. Right here the TCPA can be unconstitutional. There it is going to be completely enforceable. Callers in a single jurisdiction will face billions in publicity whereas callers in one other will stroll away free and clear. The identical caller could be instructed its calls are authorized at some point, solely to be instructed they’re unlawful the following.
We’ve seen all of it earlier than, after all. That is simply par for the course in TCPAWorld.
And but someway the stakes simply preserve getting greater and better. The swings extra excessive. The outcomes much less predictable.
The story of the statute simply retains getting odder and odder.
I’ll have to start out being attentive to politics to calm my nerves.
© Copyright 2020 Squire Patton Boggs (US) LLPNationwide Legislation Overview, Quantity X, Quantity 276