Before Thanksgiving, a bipartisan group of Senators introduced legislation aimed at decreasing the number of unwanted robocalls.
The TRACED Act would expand FCC authority under the Telephone Consumer Protection Act (“TCPA”), empower the FCC to mandate call authentication rules for voice service providers to cut down on caller ID spoofing, and create an interagency working group to encourage other law enforcement and government agencies to do more to fight illegal robocalls.
Before diving into the substance of the TRACED Act, it is worth noting a few practical realities. The TRACED Act probably will not pass before the end of this Congress and will, therefore, need to be reintroduced when the new Congress convenes in January 2019. That said, legislation introduced late in a Congress may serve as a placeholder and trial balloon for support for similar legislation in the next Congress. Introduction of the TRACED Act now may also alert the FCC and other federal agencies to step up TCPA enforcement. While the FCC already makes the TCPA a priority, the TRACED Act could push the FCC to speed up the timeline of several pending TCPA proceedings and to take even more aggressive action on TCPA complaints.
The TRACED Act’s primary change in the area of FCC TCPA enforcement is to expand the statute of limitations. Currently, the FCC must issue a notice of apparent liability related to most TCPA violations within one year of the violation. The TRACED Act extends the statute of limitations to three years. It also clarifies that the FCC may impose forfeitures of up to $10,000 for each TCPA violation; however, the FCC has already asserted its authority to impose forfeitures up to $10,000 (or more when adjusted for inflation) for violations of FCC rules promulgated pursuant to the TCPA because the FCC’s statutory authority permits it to impose forfeitures up to $10,000 per rule violation.
In addition to expanded enforcement authority, the TRACED Act would require the FCC to adopt a call authentication framework for voice service providers, including interconnected VoIP providers. Currently, voice providers receive caller ID information from a prior carrier handing off traffic or from the origination of a call. However, a carrier handing off traffic to another carrier is not required to authenticate the caller ID information it hands off, and originating carriers are not required to authenticate the caller ID information assigned to a user’s call. As a result, and because of the increased availability of VoIP technology and other software and cloud-based build your own communication technologies, it is easier than ever for a user to spoof caller ID information. While there are legitimate reasons for spoofing caller ID information, many illegal robocallers spoof caller ID information to conceal their identity or to convince a called party to answer a call he or she would not answer if the caller ID showed an unfamiliar out-of-state phone number.
The goal of a call authentication process is to allow carriers to more effectively implement blocking of known robocallers. The FCC has already taken steps to encourage creation of a voluntary private solution for call authentication. If voice service providers adopt a voluntary authentication process within a year of the TRACED Act’s passage and providers agree to participate in that voluntary process, the FCC would not be required to adopt rules mandating an authentication process. The TRACED Act would also require the FCC to adopt a safe harbor for voice service providers that block calls pursuant to a call authentication framework, whether the framework is adopted by FCC rule or is an industry created framework satisfying the TRACED Act’s requirements.
Finally, the TRACED Act would create an interagency working group to study TCPA enforcement. Specifically, the working group would determine what hurdles prevent more robust prosecution of TCPA violations, identify existing policies and programs that encourage cooperation among government agencies (including international cooperation) to prevent TCPA violations, and consider whether additional resources for the prevention and prosecution of criminal violations of the TCPA would help stem the tide of unwanted robocalls.
The TRACED Act’s creation of an interagency working group is a bit of a double-edged sword. To the extent the inclusion of the State Department in the working group leads to enhanced cooperation with foreign governments helping to cut down on scam robocalls originating outside U.S. jurisdiction, the working group could help solve an intractable robocalling issue that class action litigation and FCC enforcement under the TCPA have, so far, had little success solving. However, there is a significant risk of overreach any time a large group of federal agencies get together to talk about how to use additional resources to address a problem. In short, any company that provides or relies on automated calling technology should be concerned that a group including the FCC, FTC, CFPB, and Departments of Commerce, Homeland Security, and State will be looking for ways to put those automated calls under even more scrutiny.
As mentioned above, the TRACED Act is unlikely to pass in 2018, but stay tuned to CommLawBlog for more updates about future iterations of the TRACED Act and other TCPA updates.