Let’s Update TCPA

FILE - In this Feb. 26, 2015, file photo, Federal Communication Commission Commissioner Ajit Pai speaks during an open hearing and vote on "Net Neutrality" in Washington. Tech companies are readying for a showdown with a Republican-controlled government over threats to net neutrality, a key issue for them and their users. (AP Photo/Pablo Martinez Monsivais, File)

With bad hair styles and music, many are thankful that the nineties are over.  But, this month, many are feeling far too much nostalgia on the 1991 Telephone Consumer Protection Act (TCPA) – an arcane law that attempts to regulate, among other things, those annoying telemarketer calls that inevitably strike at dinner time.


Of course, no one wants these annoying sales calls, but as often happens in Washington, the regulatory state is behind – way behind – innovation and technology. Today, many businesses – from doctors’ offices to pharmacies to schools – are burdened by a regulation that limits their ability to efficiently reach both their customers and employees.


Under TCPA, auto-dialers are classified as technology that has the capacity to store and dial multiple phone numbers—capacity being broadly defined. To put this into context, when Congress first passed the TCPA nearly 30 years ago, we were living in a world of CD players, video consoles, and fax machines (facsimiles are also regulated by the TCPA!). Even the biggest tech giants, like Apple, were just wading into the PDA (personal digital assistant) space and a mobile phone was something large and bulky folks  had in their cars for emergencies.


Of course, today, most people—if not everyone—have a cellphone glued to their fingertips at all times. Technology has evolved and allowed us to communicate whenever and wherever we want. This has changed not only the way we communicate with friends and family, but also the way employers, advertisers, and even financial service providers communicate with their employees and customers. That’s why the FCC needs to refashion how they’re enforcing the TCPA. And when it comes to the “mini-Jarvis” to cater to our every beck and call, sacrifices are sometimes necessary in order for progress to keep pace with human needs. When customers input information into Siri or any voice search, data from the query is matched to device IDs and retained for months at a time. These developments are necessary for the smooth functioning of these technologies; federal attempts to limit retention carry an array of unintended consequences. There’s a reason why Apple and Google products have long memories- humans have short attention spans, yet need access to the same vital bits of information over the long-run. Statutory language that limits technologies’ information capacities, then, means that Aunt Barbara’s address may no longer be linked to her favorite nephew’s device ID/phone number.


The problem with TCPA is a familiar one. Unfortunately, as technology has evolved, the TCPA has not, and for nearly three decades, courts, Congress, and regulatory agencies have attempted to figure out how this rule can both protect consumers, and give businesses the leeway they need to exist in the marketplace.


The FCC has the chance to provide clarity on this issue and they should act swiftly to do so. By allowing reasonable carve outs for technology companies storing vital bits of digital information, Congress can give a green-light to game-changing innovations such as the Internet of Things. The struggle over TCPA highlights a problem that has haunted mankind since time immemorial: faulty memory. For the first time ever, people have the option of entrusting directions, reminders, and how-to’s to machines with much better processing power than the feeble human mind. There are, of course, privacy pitfalls associated with unprecedented computing and information storage. But so long as safeguards are in place to ensure that customers know the information being kept on them, there’s no reason to limit these technologies with a broad brush.