United States: Is A TCPA Overhaul On The Horizon?

On January 16, Senators John Thune and Ed Markey reintroduced a bipartisan bill designed to update the Telephone Consumer Protection Act (TCPA) and ramp up enforcement against unwanted robocalls and text messages.1

Purpose of TRACED

The Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (S. 151) (TRACED) states that it aims to address the skyrocketing volume of automated calls in recent years. The Federal Trade Commission (FCC), which enforces the TCPA, reports that it received 4.5 million complaints about automated calls in 2017, more than double the complaints logged in 2013.2 One report estimates that 42 percent of cellphone calls in 2019 will come from scammers.3

Proposed Amendments to the TCPA

The bill aims to curb automated calls by focusing on three principles: authentication, enforcement, and blocking. In particular, it includes provisions that:

  1. Require voice service providers to adopt call authentication technologies that enable telephone carriers to verify that incoming calls are legitimate before they reach consumers' phones;
  2. Broaden the FCC's authority to levy civil penalties of up to $10,000 per call on intentional violators of telemarketing restrictions;
  3. Extend the current one-year window for the FCC to identify and take civil enforcement action against intentional violations to a new three-year window;
  4. Direct the FCC to work jointly with the Department of Justice, Federal Trade Commission, Department of Commerce, State Department, Department of Homeland Security, Consumer Financial Protection Bureau, and other agencies and non-federal entities to identify methods to deter and criminally prosecute bad-faith actors; and
  5. Direct the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts.4

State Efforts to Reduce Robocalls

States have also reported they are cracking down on illegal automated calls. A coalition of 40 attorneys general, including California Attorney General Xavier Becarra, have joined to increase enforcement of entities placing unwanted calls. In February, California Senator Ben Hueso submitted a bill that requires telecommunications companies to take necessary steps to stop "neighbor spoofing" calls designed to appear as a local caller.5 Beyond punishing scammers, this bill directs the California Public Utilities Commission and the California Attorney General's Office to take action against telecommunications companies that fail to stop these calls.

Collateral Impact on Legitimate Businesses

Although the proposed legislation is intended to focus on spam calls and texts sent by bad-faith actors, these laws could also impact legitimate businesses trying to reach their customers.6 Legitimate businesses, such as healthcare providers and other consumer-facing businesses, may need to communicate pertinent and time-sensitive information to consumers who benefit from such communications. But neither the TCPA nor the FCC's past interpretations of the Act clearly distinguished between illegitimate calls from spammers and communications from good-faith actors. The Senate Committee on Commerce, Science, and Transportation recently commented that the FCC's previous interpretations of the TCPA "have resulted in uncertainty about how those calling in good faith can comply with FCC regulations, making it more difficult for consumers to receive communications they want and need."7

The FCC's broadened enforcement authority under the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, coupled with unclear definitions of spammers and auto-dialers, could lead to continuing challenges and increased litigation and enforcement activity in an area already subject to significant litigation.

Footnote

1 S. 151 – TRACED Act, Congress.Gov (Jan. 16, 2019), https://www.congress.gov/bill/116th-congress/senate-bill/151/text; Thune, Markey Reintroduce Bill to Crack Down on Illegal Robocall Scams, John Thune: U.S. Senator for South Dakota (Jan. 17, 2019), https://www.thune.senate.gov/public/index.cfm/press-releases?ID=AFD16860-99EE-4940-9926-E88826F963B2.

2 Do Not Call Registry Data Book 2017: Complaint Figures by Year, Federal Trade Commission (last visited March 18, 2019), https://www.ftc.gov/policy/reports/policy-reports/commission-staff-reports/national-do-not-call-registry-data-book-fy-2.

3 Thune, Markey Reintroduce Bill to Crack Down on Illegal Robocall Scams, Ed Markey: United States Senator for Massachusetts (Jan. 17, 2019), https://www.markey.senate.gov/news/press-releases/thune-markey-reintroduce-bill-to-crack-down-on-illegal-robocall-scams.

4 Id.

5 Andrew Sheeler, Sick of Robocalls? This California Bill Would Force Phone Companies to Crack Down on Them, The Sacramento Bee (Feb. 7, 2019), https://www.sacbee.com/news/politics-government/capitol-alert/article225637395.html.

6 Id.

7 Senators Advocate for TCPA Clarity in Letter to FCC Chairman Ajit Pai, ACA International (July 26, 2018), https://www.acainternational.org/news/senators-advocate-for-tcpa-clarity-in-letter-to-fcc-chairman-ajit-pai.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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