Supreme Court Makes Debt Collection Robocalling Illegal (Again)

from the round-and-round-we-go dept

While the US government often makes a lot of noise about their efforts to crack down on robocalls, the reality is they never actually do all that much. While the FCC often goes out of its way to advertise "record" fines levied against smaller companies and scammers, the vast, vast majority of those fines are never actually collected. The Pai FCC has claimed to have made great strides fighting the menace, despite the fact that most of its recent and well-hyped countermeasures are neither new nor effective.

One big reason for our failures is that the government often likes to turn a blind eye to the fact that the biggest and most annoying robocallers aren't scammers, but legitimate companies and debt collectors, many of which call customers (that they know can't pay) upwards of dozens of times a day. In testimony a few years back, consumer advocate Margot Freeman Saunders offered a breakdown of which organizations and companies are the most prodigious robocallers:

The Telephone Consumer Protection Act (TCPA) of 1991 prohibits the majority of robocalls, but Congress, in its infinite lack of wisdom, in 2015 amended the law to add an exemption for debt collectors trying to reach you on your cellphone. The problem is that debt collectors, as Saunders noted in her testimony, utilize many of the same tactics (spoofing, etc.) as shadier robocallers, and are certainly no less annoying and unscrupulous in their tactics. In many instances they're simply attempting to extract blood from a stone, but the government and FCC routinely like to pretend otherwise.

This week, in a bit of good news, the Supreme Court struck down that exemption entirely (pdf), making it illegal again for debt collectors to embrace robocalling.

It's a beneficial outcome to a case that started with less noble intentions. The original case stems from an attempt by telemarketers and political robocalling organizations to strike down the TCPA entirely, under the basis that the 2015 government debt exception unconstitutionally favored debt collection speech over political and other speech. But, flipping that case on its head, the Supreme Court voted 6 to 3 that the 2015 Congressional update to the law "impermissibly favored debt collection speech over political and other speech, in violation of the First Amendment. From the opinion, written by Brett Kavanaugh:

"As the Government concedes, the robocall restriction with the government-debt exception cannot satisfy strict scrutiny. The Government has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like." Government-backed loans affected by the ruling include student loans, home mortgages, veterans' loans, farm loans, and business loans."

In a joint statement, Senator Ed Markey and Representative Anna Eshoo praised the ruling as a win for consumers:

"The court rightly found that government debt collectors aren't entitled to a special exception to the TCPA's ban on robocalling. We applaud the court's decision to side with American consumers, protect our right to privacy from these abusive calls, deter countless scams that target our most vulnerable populations, and ensure that our phones will remain usable."

In short, it's a positive outcome to a case that started with the goal of eliminating robocall restrictions entirely. And it does, albeit not entirely intentionally, a nice job deflating the government's often lazy effort to conflate robocalling harassment exclusively with "scammer."

Filed Under: debt collection, debt collectors, robocalling, supreme court

Congress Forces FCC To Go Beyond Its Tame, 'Voluntary' Anti-Robocalling Plan

from the ill-communication dept

Last June you might recall that the Trump FCC unveiled a new robocall plan that it claimed would finally put the annoying problem to bed. And while the tech press tripped over itself to suggest the plan was a dramatic departure from FCC robocall policies of the past, the reality is there was little to nothing in the plan that was actually new. As is often the case with this FCC, a coagulation of half-measures, already existing efforts, and empty nonsense were just kind of thrown together in a pile and deemed to be something new and revolutionary.

The biggest change was FCC rule adjustment that would let wireless carriers install robocalling blocking tools on consumer devices by default, in contrast to the current paradigm where consumers have to opt in (assuming the tools are offered at all). But while the plan urged wireless carriers deploy anti-spoofing technology like SHAKEN/STIR to help prevent robocallers from hiding their real numbers, there was absolutely nothing in the plan that actually requires they actually do so. Because hard, clear rules with genuine accountability make AT&T and Verizon mad, you see.

Not surprisingly, the voluntary measures weren't likely to actually drive massive telecom companies to actually shore up their anti-robocall efforts. There were also justified concerns that as wireless carriers deployed anti-spoofing technologies, they'd use the opportunity to further price gouge US consumers. Realizing this, Congress passed the Traced Act, which would require wireless carriers provide anti-spoofing tech to consumers at no additional cost.

Amusingly, last week FCC boss Ajit Pai announced he was considering making deployment of SHAKEN/STIR anti-spoofing technology mandatory. In the FCC announcement, Pai tries to frame the effort as something he came up with on his own, despite the fact he was actually being mandated to do so by Congress:

"Pai framed it as his own decision, with his announcement saying the chairman "proposed a major step forward... to protect consumers against spoofed robocalls." But in reality the FCC was ordered by Congress and President Trump to implement this new rule. The requirement on the FCC was part of the TRACED Act that was signed into law in December 2019. Pai previously hoped that all carriers would deploy the technology voluntarily."

Pai didn't actually release his plan, but when he does it's likely to just mirror what was already established by new law. The problem remains that the Pai FCC will still need to be tough with giant companies that lag on deploying this technology, and, given the agency's tendency to roll over and bare its tummy on feckless fealty to industry, actual follow through will likely prove hard to come by, especially if bigger, more politically potent companies are the ones lagging behind.

Filed Under: ajit pai, congress, fcc, robocalling, robocalls, shaken/stir, spoofing

Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment

from the that's-one-way-to-look-at-it dept

Is the process of copyright trolling protected by the First Amendment? That appears to be the claim that both Rightscorp and Warner Bros. are making in response to a class action lawsuit filed against them.

Back in November, we wrote about a class action lawsuit filed against Rightscorp, by lawyer Morgan Pietz. Rightscorp, of course, is a company trying (and mostly failing) to make copyright trolling slightly more respectable by shaking down accused infringers (based on a questionable methodology) for somewhat lower amounts than traditional copyright trolls. Morgan Pietz, if you don't know, is one of the key lawyers who helped take down infamous copyright troll Prenda Law -- so his involvement was noteworthy.

Since November, when the lawsuit was initially filed, there's been some back and forth in the lawsuit (and even the main named plaintiff has changed). In the first amended complaint [pdf] that was filed last month with new lead plaintiff, John Blaha, the claims about violations of the Fair Debt Collection Practices Act have been removed, to focus mainly on violations of the Telephone Consumer Protection Act and abuse of process. The TCPA bans autodialing telemarketers, and Pietz is trying to argue that Rightscorp's autodialers fall under this law. The abuse of process claims focus on how Rightscorp got access to various people to shakedown, using DMCA 512(h) subpoenas. This is the process -- which courts have clearly rejected -- by which copyright trolls think they can issue subpoenas to ISPs about potential infringers, without first filing a lawsuit. Every few years, copyright trolls think they've newly discovered this loophole even though the courts have rejected it. The lawsuit has also added key Rightscorp clients, Warner Bros. and BMG, as defendants as well.

Last week, Rightscorp responded [pdf] by arguing that the case should be dismissed under California's anti-SLAPP law. Now, we've been huge supporters of California's anti-SLAPP law and believe that we need a similar federal anti-SLAPP law. Anti-SLAPP laws allow defendants to quickly get lawsuits dismissed when it's clear those lawsuits are nothing more than attempts to silence their public speech (SLAPP standing for "Strategic Lawsuit Against Public Participation.") However, I'm hard pressed to see how robocalling someone demanding they pay up or get sued is "public participation" in any way. Here's how Rightscorp makes its argument however:

The abuse of process claim should be dismissed under California’s anti-SLAPP statute, as Plaintiff’s attempt to recover damages from Defendants and enjoin them from making further subpoena applications impermissibly impairs Defendants’ free speech and petitioning rights. The imposition of the remedies Plaintiff seeks is prohibited as it would unduly burden Defendants’ efforts to invoke legal process to identify copyright violators who illegally distribute Rightscorp’s clients’ protected works. As the California courts have consistently held, claims attacking a defendant’s efforts to invoke the legal system are subject to being automatically stricken under anti-SLAPP.

But that's not true at all. It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech. There are plenty of situations where courts have ruled that such subpoenas are inappropriate -- including (as mentioned above) in nearly identical cases. It's not a free speech issue at all. But having gone down this path, Warner Bros. (Rightscorp's main client) has decided to chime in as well [pdf].

Specifically, Plaintiff’s claim impermissibly challenges Defendant’s petitioning conduct, which is protected under California’s anti-SLAPP statute.

While I'm not convinced that Pietz's class action will survive (for a variety of reasons), the idea that the lawsuit itself should be barred under California's anti-SLAPP law seems ridiculous. The lawsuit is not seeking to block Rightscorp's First Amendment rights. It's seeking to stop robocalls and illegal subpoenas that are used to allow Rightscorp to shakedown people for settlement money by bombarding them with demands to pay up to avoid being sued.

Filed Under: anti-slapp, california, class action, copyright, copyright trolling, dmca, first amendment, morgan pietz, process violations, robocalling, subpoena
Companies: rightscorp, warner bros.