Move over robocop, there’s a new constable in town — the robocall cop. In the past decade, robocalls have surged. There has also been a dramatic rise in litigation about these calls under the Telephone Consumer Protection Act (TCPA). The TCPA litigation is led by a small group of serial litigators, people who have assumed the role of private enforcers of the TCPA. This is a fascinating story about how privacy law combats the growing scourge of robocalls. We are seeing the effective use of private litigation as an enforcement tool, but there are differing interpretations about the virtues of the robocall cops. Also wrapped up on the story is the issue of harm.
Robocalls are rising at an alarming rate. In the month of September 2017 alone, there were 2.4 billion robocalls. The number keeps rising per month, and September 2018 gave birth to 4.1 billion robocalls. At this rate, there may be billions and billions more robocalls than stars in the universe! Robocalls are definitely a problem. I’ve never heard of anyone who likes robocalls; the mosquito probably ranks higher in popularity. But robocalls persist and proliferate. Annually, in the United States, the number of robocalls exceeds 100 per person. There are 4.5 million robocall complaints per year to the FTC.
Along with the rise of robocalls, litigation has also been increasing. Lawsuits are perhaps a bit more popular than robocalls or mosquitos, but not by much. The TCPA, 47 U.S.C. § 227, passed in 1991, requires various forms of prior consent for robocalls, which are calls made with what the TCPA refers to as an “automatic telephone dialing system” (ATDS). Violations of the TCPA can be enforced through a private right of action, and there are statutory damages of $500 per violation ($1,500 for willful violations). The number of TCPA lawsuits has skyrocketed, from 14 federal cases in 2007 to 4,392 federal cases in 2017.