A Conversation with FCC Commissioner Michael O’Rielly: The Telephone Consumer Protection Act Landscape after Barr v. American Association of Political Consultants

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On May 6, 2020, the Supreme Court heard oral arguments in Barr v. American Association of Political Consultants.  While the case focused specifically on the constitutionality of the Telephone Consumer Protection Act (TCPA) exemption allowing robocalls, without consent, to collect government debt, the fate of the statute itself hangs in the balance as the Supreme Court decides on an appropriate remedy. 

FCC Commissioner Michael O’Rielly joins Wiley Rein partner Scott Delacourt to discuss the implications of Barr v. AAPC within the broader TCPA landscape, including the nationwide circuit split on interpreting “automatic telephone dialing system” and the FCC’s role in resolving ongoing legal and regulatory uncertainty.  

Featuring: 

Michael O’Rielly, Commissioner, Federal Communications Commission

Scott D. Delacourt, Partner, Wiley Rein LLP

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled, "A Conversation with FCC Commissioner Michael O'Rielly: Telephone Consumer Protection Act Landscape after Barr v. American Association of Political Consultants." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

     

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Michael O'Rielly, a Commissioner at the Federal Communications Commission; Scott Delacourt, a partner at Wiley Rein, who has a broad range of experience in transactions, FTC, FCC investigations and enforcement, and wireless telecom and data privacy and security. He's also the Chair of Wiley's FTC practice group. 

 

      After our speakers give their opening remarks, we will go to audience Q&A. Thank you all for sharing with us today. Scott, the floor is yours.

 

Scott Delacourt:  Thanks very much.

 

      On May 6th, the Supreme Court heard oral argument in Barr v. American Association of Political Consultants, which offered a rare look into the Court's views of the Telephone Consumer Protection Act, a controversial robocall statute. And we're very happy today to have Commissioner O'Rielly to discuss the case with us. He's long been an influential voice on TCPA issues.

 

      Just to set the case up, at issue is a 2015 amendment to the TCPA that exempts federal debt collection calls from the TCPA's restriction on placing automated calls to wireless phones without consent. The American Association of Political Consultants, which has an interest in political calling, took the position that as amended, the TCPA makes content-based distinctions as to permitted speech, and as a result, should be subject to strict scrutiny under the First Amendment.

 

      They argued further that the speech restrictions couldn't survive a strict scrutiny review, and urged the Court to strike down not just the amendment that was imposed in 2015 but the statute itself. The government, for its part, took the position that the 2015 amendment regulates economic activity, not speech, and should be reviewed under a reasonableness standard. Under this more relaxed standard, they argued the 2015 amendment should be upheld. If, however, the Court were to find the amendment unconstitutional, the government argued that the remedy would be to sever the amendment and preserve the statute intact.

 

      Commissioner O'Rielly, did you have a chance to follow the oral argument? They're a little more accessible these days now that they're streaming them online. And any impressions you would like to share?

 

Michael O'Rielly:  Well, Scott, thanks so much for having me. I really appreciate the opportunity to be here. Thank you to The Federalist Society for hosting this event.

 

It's a really important topic. I did get a chance to listen to the case, hear the different arguments from the presenters, and from the judges themselves. It was really interesting dialogue between the two. But as they say, this is -- the case isn't exactly on point in terms of TCPA direct attack or direct challenge, it's a portion of it, as you did a very good job outlining the situation. So a very unique dialogue occurred, I think.

 

And you saw early on, and I look at -- I have to preface this and say no one can predict where the Supreme Court's going to go with something. I have a bad track record after some healthcare issues in the past at guessing where I thought the Court might go, so my guess on where they ultimately land is probably not worth all that much. But when I heard the Court say -- it was certainly a general agreement from a number of Justices that the First Amendment challenge from the modification just made by the Congress not too many years ago was certainly viable. The biggest piece that more time, or at least more energy, seemed to be on the severability question.

 

Scott Delacourt:  Yeah, yeah. I would agree with that. Let's talk a little bit about that. If the Court were to find that the consent exception for calls to collect government debt violated the First Amendment, then, of course, they'd have to go to remedies. And as you point out, the government urged a narrow approach at severing the amendment, creating the exception, and upholding the statute.

 

But the political consultants urged something far more reaching in overturning the entire statute, because the automatic telephone dialing system restriction, they argued, and the company consent requirements themselves are overbroad and unjustified restriction on speech. From an FCC perspective, what would be the impact of the statute itself being overturned?

 

Michael O'Rielly:  Well, look, in fairness I certainly took the Court's different questioning to heart, and it was intriguing in terms of where they may, or may not, land on the severability question. But if it were to go to the broadest sense and invalidate the statute on the Constitution, I think that for our purposes at the Commission, I'm not sure it would change all that much because we already have the definition of ATDS already being challenged. It's already a mess on what qualifies and doesn't qualify. And that's something that's been our fault for lack of clarity. It's an overreach from past commissions and what they've done. So I'm not sure that the ramifications are that significant.

 

Now, what of it may mean for purposes of some of the work that we've done on the illegal robocalls, where clearly outside the bounds of some of the statute the violations are clearly -- I think you get a situation where people have articulated where it would provide the energy to Congress to come in and provide a much more clear statute. So that to me is actually -- could benefit everybody in the process because what we're living under now is a complete mess.

 

Scott Delacourt:  So you've been very active on TCPA issues, and the FCC's work has been on -- most recently on blocking the origination of illegal robocalls, but the Court was more interested in the First Amendment implications of the statute. This idea that speech involving the collection of government debt would be treated more favorably than other speech for TCPA purposes. Do you have any views on the impact of the TCPA as a limitation on speech, particularly on political speech and commercial speech?

 

Michael O'Rielly:  Well, could I maybe -- I've talked about this in a number of speeches, and over the years, I may be more sympathetic to protections for commercial speech and protective speech than some others that are out there. I know when we did the do not call list, there were challenges that eventually didn't make their way in, but I was more sympathetic to the First Amendment challenges that were made at the time because commercial speech is protected. People don't seem to like that fact, but it is.

 

The protections may not be to the fullest degree that are provided to individuals, but they are provided and have court precedent for those purposes. So I'm probably more sympathetic than some and in order for it to see where that goes if the Court plays this out because it's really fundamental. You're absolutely right where they -- it's much more about the First Amendment piece because we've lived under this statute since '92 really in the implementation years and people seemed to find it a popular statute.

 

Nobody likes illegal robocalls, but that's not the issue at hand. The questions -- you highlighted a number of the different technologies that we've worked through over the years and tried to deal with those issues. And I think that just recently I've been more favorable towards what we've tried to get to with the illegal robocalls happening overseas because that's been a big portion of calls. They are coming into the United States in different forms. We try to get to those and really tackling those are, to me, a primary function of the regulator. What we found in our past efforts is we'd been splitting hairs with legitimate companies and trying to -- it'd really been problematic in terms of their operations and using technology for good purposes.

 

Scott Delacourt:  Yeah, and that work has been really helpful in bringing the numbers down on the total call volume, so though, I gather it still continues to be right up there in terms of consumer complaints. You mentioned that the TCPA is a popular statute, and that was one of the surprising things to me in the oral argument is that some of the Justices embedded that into their question, this conceit that it's a popular statute. But that seems to all be a matter of perspective and whether one thinks the statute is effective in what it's intended to do with is to prevent illegal robocalls as opposed to legal robocalls.

 

You gave some remarks last year, maybe a year ago, where you said, "Repeat after me. Robocall is not a bad word." And you talked about this distinction between good and bad robocalls and that it's just the technology and you received a lot of blowback for that. Can you talk about your perspective on that issue, and why it seems at times the distinction is lost in the overall robocall debate?

 

Michael O'Rielly:  Well, I think that the volume of illegal robocalls to consumers dwarfs the small number of legitimate callers and the benefits that they bring. So people don't like to be disrupted by illegal robocalls, no one seems to, but we tend to use just robocalls in general rather than being more clear on the issue. And it really does matter for our purposes because one is a statutory issue.

 

And the other -- to your point in terms of the popularity issue, there are a number of statutes the Court deals with that are popular. And I remember dealing with some healthcare ones that were unpopular, and it didn't matter for their purposes of deciding whether -- what the favorables were on any particular statute. Because if it did, you would have the First Amendment be jumped long ago and so the First Amendment -- the beauty of it, one of the beauties of it at least, in my opinion, is that it protects the speech even if unpopular and that's where we are.

 

And so this instance is -- when you talked about -- or your question certainly gets the issue of good and bad robocalls, and I've been very protective of good robocalls because there's so many that benefit society. And the cost of making them is the differentiation for those that need to between making [a] call and not making a call. So you want that call from your pharmacy to tell you that your prescription's up, you want that call from your school to say that school's being closed early come get your children, you want that call from the gas company to tell you hey, there's been an issue in your neighborhood we need to get people out of dodge, or the opposite that the issue's been resolved and you can return to your home safely. You want those calls.

 

There are umpteen number of instances that we've dealt with in the past, a number of items that we've already adopted for this purpose, and we have so many petitions before us that would deal with a number of good robocalls, beneficial robocalls, that are being challenged or certainly being the murkiness of the statute. And the FCC's actions have made it more difficult and precarious -- those who want to make the calls in a very precarious situation.

 

So we want to get to the bad robocalls, and we want to keep the good robocalls and learn how reactions of the Commission have flowed over the last many years has certainly been telling. We spent too much time, in my opinion, going after legitimate calls and not enough time in the former category, going after those that are trying to perpetuate these illegal robocalls, many of them overseas. And just recently we've done a better job of fixing that direction.

 

Scott Delacourt:  Well, those comments go to where the FCC's focus should be and taking things up a level from this particular case. When robocalls are talked and written about, it seems to be either from the perspective of consumer complaints or in—the large number of them—or class action abuse and serial plaintiffs. Can you talk about your perspective on that balancing as a regulator, and where your priorities lie?

 

Michael O'Rielly:  Well look, if we were to separate the First Amendment conversation for the immediate purposes of answering your question, it still is premiere for my analysis. But if I separate it for our purposes now -- the purpose of the call and what it can be used for to benefit consumers has to be acknowledged.

 

And then we do get quite a number of complaints of people being disrupted, people being bothered at certain times or repetitive calls from the same entity. That is certainly a priority of the enforcement side of the equation. How do you deal with it? And it's being, in my opinion, how do I approach it as a regulator? I would answer the question, you have to do it very smartly. And that means not spending all our time on the legitimate side but really attack those -- the bulk of calls that are happening that are very clearly illegal.

 

I like the work we've done just recently with the FTC to try and get at those that are trying to use U.S. providers that are carrying their traffic through. Some of the technology that we've adopted, and will be part of the TRACED Act, a recent statute enacted by the Congress, and now law, certainly will help in some degree. Labeling and identification will certainly help consumer know what's beneficial.

 

But from my perspective, I had to take this from a recognition that there are protections, certain First Amendment pieces, but also the legitimate company trying to provide a benefit should not be stymied by a legal system and the structure in the statute that has endorsed bounty litigators. That's not beneficial for the American consumer as a whole, and it's certainly not beneficial for the FCC.

 

Scott Delacourt:  Well, thank you, because I think that is part of the debate that often gets neglected. The FCC has really focused on stopping illegal robocalls, but recently the FCC on its own motion liberalized the TCPA rules to facilitate certain emergency communications related to the COVID-19 pandemic. Can you talk about what the agency did and why?

 

Michael O'Rielly:  Well, again, there's a recognition early on that there were -- and there's a number of steps the Commission has taken, and the Chairman has certainly pushed this forward during the recent pandemic, on addressing immediate needs. And the Commission has taken action here to provide clarity of getting the emergency communications through. I think there's more work to be done.

 

I've been very supportive of a petition put forward by the financial services industry, which a large number of organizations what aren't the best of friends came together and said look it, we're trying to provide communications to consumers to fit a couple different categories to benefit during the pandemic, and that's been pending. And hopefully, we'll be able to take action on that soon. So there's some action that we've already done to clarify, provide a little bit of relief so people can -- so providers can contact those as it relates to the pandemic and the issues of COVID-19.

 

There's much more work to be done to provide more clarity. I think of the thought -- the issues that I worked hard on over the years as related to housing and financial security. And the belief that a lender shouldn't be capable of contacting a homeowner that their mortgage may need a modification or there are beneficial programs that maybe help them keep in their home, and we put that on the sideline and say oh we're going to -- if you have exposure points from potential liability under TCPA and we know [what] the answer's going to be because we've seen it time and time again, they won't make the calls.

 

And then consumers will get a notice in the mail that says your loan -- you're now in default and here's the procedures that we're going to start to move forward on, and that to me is really problematic. I have deep concern for those consumers who are not notified, who are not -- the calls do not go through and are not made because of the situation we find ourselves in on TCPA.

 

Scott Delacourt:  You know, one of the things we hear whenever the TCPA is going to be liberalized, or where there are consent exceptions for meritorious calls like the ones you're talking about, is that it's going to be abused or that the volume of calls will be so large that it's not warranted no matter how good the cause. Have you had any feedback, positive or negative, about the flexibility that's been offered for COVID-19 calling? Who's using the additional flexibility, and how do you think that it's working?

 

Michael O'Rielly:  To be honest, I think the numbers are so -- the number of illegal robocalls are so high, in the billions, that adding 100,000 new calls under our new structure the new flexibility provided them—I'm giving a rough estimate—that to me has had little impact. And I haven't received one complaint that I've seen from the new flexibility issues.

 

And that's why I'm comfortable because I know the people and the companies that underlie those that have sought more flexibility, and they're not interested in risking their reputation on making the bothersome calls that consumers don't like. They're trying to provide a benefit, and that's why I point out the financial services. But there's many other companies that are in the same straits, and I'd like to see us treat them all similar and broaden out the application petition when we get to that point. So I have not had a high incident rate from the flexibility we had and should be telling to the rest of the Commission that this isn't a problematic situation going under given all of the other robocalls that are made illegally and should be addressed otherwise.

 

Scott Delacourt:  Agreed, agreed. Well, no discussion of the TCPA would be complete without mentioning the elephant in the room, which is the definition of the Automatic Telephone Dialing System or ATDS. This gets pretty wonky pretty fast, but ATDS is -- the definition is the trigger for the consent requirements. If you are using an ATDS, you need consumer consent. And the FCC, under our prior Chairman, defined the term ATDS very expansively to cover even equipment that could be modified to do auto-dialing. The D.C. Circuit said that was too far, vacated the order, and remanded the issue to the Commission, where it remains pending.

 

Meanwhile, the Federal Circuit Courts have split on how the terms should be defined. The Ninth Circuit has the broadest definition that includes any equipment that can store lists of numbers. While the Third, Seventh, and Eleventh Circuits have a narrower reading requiring use of a random or sequential number generator for equipment to be an ATDS. How do you think this language should be interpreted? And I should add I feel that this is a fair question only because in vacating the FCC's expansive definition, the D.C. Circuit seemed to favor an interpretation that you offered in a dissent.

 

Michael O'Rielly:  Well, I certainly appreciate that the Court had read my points that I raised at the time. I believe the statute, of someone who worked on statutes for many years of his career, to be the words that are on the paper. And I certainly believe legislative history is beneficial, but I believe in this instance that the circuits are only split because you have the Ninth Circuit, which is ignoring the statute. The others are, in different degrees, abiding by the law.

 

People can disagree whether the law is good or bad, and can have policy disagreements with it and whether it should be changed, but the conditions that the other circuits have placed outside of the Ninth Circuit are in the statute, in my opinion. If people don't like that, there is a remedy to that, and that is to go to your elected representatives and have them change the statute. It's not to have a court read into it what it would like the statute to be.

 

And that's where I think the problem is of the Ninth Circuit, and I think that's why -- I think it's important for the Commission to act given the course of action by the D.C. Circuit Court of Appeals sending the ACA International back into our laps, and back into the FCC's laps, to take action, provide a definition, which to my mind is to follow a statute and other issues that go into that. The other issues that we need to address as well, and the Commission is working on some of those, but that is the biggest one, the more thorny. And at the end of the day, if our rules and our interpretation, which follows the law, is not approved yet, people don't feel comfortable with it, then they have the remedy, and that's the one they should pursue rather than asking us to act outside the bounds of our authority.

 

Scott Delacourt:  So that's tantalizing to some of us to hear that the FCC is thinking about what to do next with the D.C. Circuit's remand. Are we likely to see FCC action in this preceding any time soon?

 

Michael O'Rielly:  Well, I've got to tell you I got to leave all those issues and timing up to the Chairman. I've certainly called for that. But I think in the meantime, what you're seeing is that companies are being challenged and dragged into the Ninth Circuit. So if you can find a way to find some type of activist to take the court -- to take the case to the Ninth Circuit you can get a favorable ruling, versus some of the other circuits that you may not be favorable. And I think that's -- the forum shopping's incredibly problematic.

 

I'm hopeful that maybe the action, the decision, in the Barr case will provide an energy to the Commission, but I just don't know. It's been out there for quite a while, and if we're not going to -- I've made the point that if we are not going to act on the definition and the big-ticket items that need to be addressed, if we're going to set them aside for whatever reason, then we have to act on the petitions that are pending. The list keeps growing. And the majority of them by far are legitimate companies seeking clarity to provide beneficial calls to consumers that would actually benefit, not only benefit, but have actually sought out the calls themselves. So for my purposes, we've got to -- we should be shrinking that universal petition list down and addressing as much clarity as you possibly can.

 

Scott Delacourt:  Well, we've covered a lot of territory at this point in the discussion, and maybe this is an opportunity to open things up and hear if we have any questions from our audience.

 

Greg Walsh:  Perfect. Let's go to audience questions. We'll now go to the first caller.

 

John Meyer (sp):  This is John Meyer. And I believe that, in addition to all the illegal calls, I think there are many more legal ones. And you're saying -- and I think 99 percent of them are still calls that people don't want. In fact, I believe that most of these people are committing a nuisance, but they're just not possible to sue. What I would ask -- so I think now its legal interpretation of allowable robocalls should be used, and I just think that the idea that they're beneficial and balanced to consumers is wrong. And what I really think should happen is you ought to have to be licensed in order to do robocalls. But that isn't really a question, so my question would be how much is the FTC—is it FCC or FTC, whichever you are—considering the harassment to consumers, even from legal robocalls?

 

Michael O'Rielly:  Well, I certainly appreciate your perspective. That's not the statute that governs our activities in this case. The TCPA has certain limitations, and it doesn't get to the point you make. That is certainly something Congress could try to craft. I think it would run into some First Amendment problems if it did so.

 

I understand that people don't want any calls, and there is technology out there that would help. There are tons of blocking programs that prevent -- whether they'd be identified calls -- they go down the different options you can choose. Those just aren't in the current statute in terms of the issues that we're raising here today. It's a high priority at the FCC. The Chairman has labeled that the number one consumer protection issue, and I think that we can spend a great deal of time debating whether legal robocalls are beneficial, but the real issue is how do you get the -- how do you shrink, in my opinion, how do you shrink the illegal robocalls.

 

I didn't -- I don't think I said 99 percent, I said there's a good bulk of them coming from overseas that need to be addressed. That's a real thorny issue, especially as you're going to drive those calls to places where we don't have extradition, where they don't have normalized treaties with the United States. So that's really hard and really thorny work because the technology makes calling so cheap it can be done just about anywhere on the planet. So I appreciate your perspective, I just -- it's not the one that governs our activities, and Congress certainly could go down that path. It has chosen not to. I suspect it probably won't in the near term anyway.

 

Scott Delacourt:  Commissioner, I would just add to your comments that the question posits a legal solution. But there are many efforts being made on technical solutions, including at the Commission, with some of its efforts on the TRACED Act implementation. But there are also many user empowerment tools out in the market, apps that are free that can be used for blocking that are widely available, and they're rated on which ones are most effective. They're available from all sorts of third-parties, but also from the carriers, so there are ways to get at it short of licensing.

 

Michael O'Rielly:  Oh, no. Absolutely. And the STIR/SHAKEN work that we've done, and now the -- basically codified by the TRACED Act, will provide more clarity when those calls in come into consumers and their desire to pick them up and provides more notification on that front. It's not a panacea but it can be very beneficial. And you highlight a number of technological solutions that are out there.

 

One of the things the Commission did, which I think is reasonable, is make -- and certainly supported, and we made clear that some of the blocking technologies that were available in the marketplace could be deployed by providers for purposes of helping consumers. They weren't prohibited from doing so. The issue came who's going to pay, who's not going to pay and did a little disagreement on those situations, but I think that's beneficial to have -- and you see this by providers are taking advantage of doing this.

 

Now, the flip side of that is I want to make sure that those calls that they block are really going after the illegal robocalls because the beneficial calls shouldn't be blocked by our providers. And having a relationship between legitimate companies willing to make -- use this technology, and the provider, we've got to figure out that situation, something the TRACED Act has pushed us to do. And I’m looking forward to figuring out how do we have a process to make sure that good calls get through.

 

Greg Walsh:  Let's go to the next --

 

Scott Delacourt:  -- Do we have another question?

 

Greg Walsh:  Perfect. Yeah. Let's go to the next question.

 

Howard Bellskert (sp):  Hey, this is Howard Bellskert. Commissioner, thanks for doing this. So I just wanted to -- I know you don't set the agenda at the FCC, but it sort of feels as though -- I think when this administration started, there was a sense that based on, sort of your reaction and Chairman Pai's reaction to the declaratory order that had been approved under former Chairman Wheeler, that there would be some changes. But it seems like most of the focus has just been on further -- people hate robocalls so much that there's just been so much emphasis on that, but very relatively little done -- just sort of cleared the way for other more legitimate callers. Is there anything happening, or any conversations you're having within the FCC, that give you a sense that something more could happen by the end of this year?

 

Michael O'Rielly:  Well, look it, I appreciate your question, Howard. I think the point I would respond [to] and say the Chairman's done yeoman work to try and get at the illegal robocall issue. Some of it, I thought, was better than others. Some of it's going to be more helpful than others. And I think they're really getting -- honing into what might be incredibly valuable going forward. And so that may have been the proprieties, how do we get some benefits and programs that really can help consumers upfront before we address some of the issues.

 

So the priorities is up to the Chairman. I don't know if I'm optimistic in near term that we're going to get any resolution. I'd like to believe so, I'm an optimist. I think it's absolutely necessary, certainly with the split in the circuits. And I should say that I haven't been no fan of the Second Circuit and where they've gone in term of the definitional interpretations either. But I think that there's more work that we could do.

 

The agency itself is got a -- some issues as you can imagine, given the closure of most of activity in Washington D.C. The good staff is working really hard, most of everyone is from home, and so I really appreciate what they've been able to do. I'd like to believe we can provide more clarity this year. And we'll just have to see if that can happen.

 

Howard Bellskert (sp):  Thank you.

 

Greg Walsh:  Let's go to the next caller.

 

Patricia Paoletta:  It's Trisha Paoletta -- Patricia Paoletta from Harris, Wiltshire & Grannis. Thank you, Commissioner O'Rielly, for joining us. I've a bit of a curveball. If it's too obtuse, you can politely give me a non-answer. But I've heard -- you mentioned the TRACED Act and implementation, and I'd heard from another policymaker in another part of the government that between the TRACED Act implementation, and Rip and Replace, and the Secure 5G Bill, which granted money for removing Chinese equipment from networks that -- the smaller carriers out there that still had Chinese equipment in their network could take advantage of that money out there to kind of do a twofer and put in trusted vendor equipment, while also upgrading their networks to have in-network blockings to implement the -- an identification to implement the TRACED Act. But any thinking within the FCC on that, or do you see that connection? It had been new to me. I had to go back and read the various bills to see if there was even kind of a connection.

 

Michael O'Rielly:  Well, I -- your point's well taken. I do worry that there isn't -- there's been a question of how far the dollars would go in the Rip and Replace side of the equation. I mean how long it would take a number of providers -- when we were doing personal meetings before this current circumstances, highlighted how expensive it would be and how time-consuming it would be to replace the equipment that Congress had decided. So I think there's -- I can certainly see a scenario where you could do both, where you could use the timing of the one, but I wonder if people aren't going to be -- providers aren't going to be subsumed in making sure that they do a fulsome job on the first without trying to shoehorn some of the other functionality that can be beneficial. We'll just have to see. I haven't heard any providers suggest that would be the case, but we'll just have to see.

 

Patricia Paoletta:  Thank you.

 

Scott Delacourt:  Commissioner, a related question to Tricia's, while we're waiting for the next audience question. Separate and apart from the availability of Rip and Replace, or other money, certainly you're sensitive to the fact that TRACED Act implementation is more of a challenge for small and rural carriers than it may be for the larger ones. Can you discuss your thinking about that, and how the FCC will face the unique challenges they have in implementing this particular mandate?

 

Michael O'Rielly:  Well, yes. We're mindful of the impact, in some instances, statutorily separate. We're always mindful of the impact of obligations that are imposed. The TRACED Act, I think, does a fairly good job, in a number of instances, separating it out and recognizing what they see as more -- would it provide more flexibility for smaller providers. But that is part of the role of a regulator. To be and to recognize, where provided some flexibility, to where the circumstances it may be needed. Small providers haven't -- maybe they've seen costs as a larger provider, but have less flexibility in terms of the timing, and in some instances, it may be weather-driven.

 

In terms of Rip and Replace, it's not something you're going to be able to do 12 months a year, certainly out in -- above the Mason Dixon line. I think of what you can do in Buffalo in the winter—from my home town—you're not climbing towers, you're not replacing radios in January. So I'm mindful of those things, and where we can and where we do have flexibility, I want to take advantage of it to make sure everything can work. In other instances, the statute is what the statute says, and I have to abide by it. And I trust that those that are agreed will have an opportunity to raise their issues either in Congress or we can look at whether we may have some labor authority.

 

Scott Delacourt:  Great.

 

Greg Walsh:  Perfect. Well, let's go to the next question.

 

Michael:  Hi. I have a question for the Commissioner. My name is Michael, I'm in Maryland. And the question is about vicarious liability. The FCC has given an opinion about that in a couple of its orders, and courts defer to that opinion as they generally do the FCC's orders. But vicarious liability seems like something that is not really in the FCC's area of expertise. In one, there was a dissenting opinion by one of the Commissioners, I believe, saying what I just said.

 

So my question is since the Supreme Court has indicated, not in the TCPA but for another area of law, that obligations -- federal obligations can't be contracted out, which is typically what happens with telemarketing calls. Why isn't the FCC sort of following what the Supreme Court has said so that we don't have the situation where sellers of products or services find a fly-by-night, far-flung telemarketer to make calls that both the FCC and FTC have trouble tracking down, and certainly individuals do, and then let the seller off using or citing the FCC's opinion? Because it seems like a big impediment to enforcing the statute and getting robocalls stopped.

 

Michael O'Rielly:  Yeah. I appreciate your question. I think we would acknowledge that vicarious liability is not an absolute expertise of the FCC, compared to other agencies, and you can see this in other instances. I would say that the -- if you look at the call volume and the number of complaints that we receive compared to its -- and though it's -- I always declared it our number one priority. It pales in comparison to the number that the FTC gets every year -- and they have so many more that the complaints that they're getting -- and they've approached it differently than we have.

 

Where just recently we've done some more joint enforcement actions with them. And I think that's more mindful than unleashing the litigants that we've seen over the last many years and the structure of the statute where we make it basically a bounty plaintiff lawyer opportunity. And that's -- we've got six or seven law firms that are specializing in this, to capture and to try to scare legitimate companies from using this technology. In some regards, it's worked. The number of providers don't -- the number of legitimate commerce companies that we know today do not take advantage of this technology, even though it would be beneficial to the consumers -- to their customers, because of the risks and the liability. We see that in the petitions that are before us, and that shouldn't be the circumstance.

 

And I don't know how much I would agree with your point that the legitimate companies are hiring fly-by-night artists and throwing calls for that purpose. When I -- the folks that I'm articulating and defending for making legitimate calls, hire legitimate companies for this purpose, and it's not too dissimilar to why the -- go back, all the way, circle back to the court case that's before the Supreme Court. Why did Congress try to exempt the debt that's owed to the United States? Because it wants the opportunity to collect the money that it is owed, whether it be in student loans or whatever. And I've had difficulty with some of the interpretations of that statute because they've tried to narrow it to say that it only can be done within house of the agency.

 

But we all know that the agencies themselves setting up their own telemarketing campaigns are not going to be as efficient as hiring a top tier telemarketing firm that is completely legitimate for these purposes. So I'm really concerned that people have the view that the legitimate companies would do deceptive practices for this, then we go through these and have a brand, and put it at risk by hiring whomever on the cheek to make these calls. That to me is not what the record shows, and not before -- is not been -- it's been articulated by some folks I've seen and heard from but I don't -- I find that hard to believe and not demonstrated in the record at all.

 

Greg Walsh:  Let's go to our next caller. Caller from area code 801, you're on the line.

 

Caller 5:  Yeah, I have a question concerning the interaction that the Supreme Court had in defining privacy as one of the issues that supported positions. They seem to suggest that -- or at least the government's position seemed to suggest that privacy was or wasn't part of this issue. And with the new rules coming out, both at state and federal levels regarding privacy, do you see that issue of the combining of privacy with these others regulatory issues as being a big influence on the direction you're going? And if so, how do you think that's going to influence your decisions?

 

Michael O'Rielly:  Well, the issue of privacy is a very complex one because it depends on -- there's many different elements that go into that. I did -- the oral arguments did provide -- a number of members touched upon it, but I didn't find it as essential theme and didn't strike it as the traditional privacy structure that we talk about. And that has been the subject of much debate in Congress in terms of a new statute they may want to consider, or activity that's happened overseas and is now governing a lot of information sharing practices that are happening.

 

So I find the issue of privacy to be really stimulating for the intellect, but actually providing benefit to consumers, I find it missing a lot of help. And I hope that comes through in my conversation today, and my point early on is that I don't like, and do not support, and will never support illegal robocalls. And that is the bulk of what we should be tackling in our efforts and haven't been in the past.

 

And I appreciate all the good work that Chairman Pai has done to refocus the agency on those issues through a number of different means. Some may not support what he's done in terms of timing or not, but that's for him to decide. But I really appreciate getting to where we're finally getting to, that's important. I don't know if I would lead this into a larger privacy discussion. I think it's a statute on its face. It certainly could be something that Congress could reconsider depending on what happens in the court case in this instance or in potential other ones.

 

Scott Delacourt:  I would just add to that, it's a good question and privacy in this context is a little different than what we think of under something like GDPR or the California Privacy Law, where the interest that's being protected is a consumer right not to have something revealed about him or her that is otherwise kept private. And that sort of an interest isn't really impinged by the TCPA.

 

The privacy interest that's articulated is the right not to be disturbed or annoyed, but it is different, and the counsel for the political consultants made that point in argument to the Supreme Court. Their point was if this is a core privacy statute, and the interest that's being validated by the government is preventing people from being disturbed, how can they adopt an exemption that would allow for people to be disturbed as long as the purpose is to collect a government debt, but that was inconsistent. So I do think there's some tension about the TCPA being a true privacy statute.

 

Michael O'Rielly:  I certainly believe the -- it is mentioned in the statute and mentioned in the legislative history when enacting [inaudible 44:27] in '91. So it's definitely a purpose, but your point is the one I was making, you made it more eloquently. I think it's a slightly different variation of privacy, and we'll just have to see, again, where the Court goes.

 

One thing we talked about early on, and kind of moved to different direction, but I'm really intrigued about the remedy side. Because you certainly saw a lot of folks talk about the severability issue -- a lot of Justices, excuse me, a handful of Justices talk about the severability issue. And one thing that I hadn't heard before, or read in other cases, is the idea that if plaintiffs were successful that they were somewhat owed some type of relief. And then what relief would be -- if the exemption were struck down, what would be their relief? I thought that was [a] very intriguing approach and what that would mean for the statute.

 

And look it, I answered the issue earlier of what would happen if TCPA were to be struck, and I didn't mean to be flippant in the point that I don't know that it would change all that much. It certainly had an impact, but I think my answer is driven -- to a point I think it would -- and I think this is raised in oral arguments, is that it would drive Congress to enact a much more thoughtful, technical statute that wasn't exactly of mindset in 1991 in terms of where we are and what our wireless communications look today compared to 1991 are vastly different. And I think that everyone can benefit from more clarity.

 

Greg Walsh:  Keep an eye out for emails announcing upcoming teleforum calls. You can also consult the full schedule of our upcoming telefora on The Federalist Society's website fedsoc.org. Also, available there are podcasts of previous recorded teleforum calls you may have missed, as well as on iTunes, Spotify, and Google Play. Commissioner and Scott, is there anything you want to say before we conclude?

 

Scott Delacourt:  I just want to thank the Commissioner O'Rielly for joining us. Commissioner, you're always insightful on these topics, and we very much appreciate your willingness to be forthcoming. I really appreciate your joining us and taking the time.

 

Michael O'Rielly:  Well, thank you all. Thank The Federalist Society for having me and having this forum. I realize it's a really particular subject matter, and not everyone is attuned to every component, and God bless, they don't need to. That's somewhere the job of the FCC and FTC. So I really appreciate the opportunity to dig into some of these issues. And I think as a whole we're all anxious to see what happens in the court case and see if the Commission has the will to act on its own accord as we go forward. So I thank the audience, to those who listened, and I look forward to continuing to advocate in the subject matter.

 

Greg Walsh:  Thank you. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.