Amidst the polarization in Washington, there remains one thing nearly everyone agrees on; no one likes robocalls. Last month, the House passed the Stopping Bad Robocalls Act, which directs the Federal Communications Commission (“FCC” or “Commission”) to take several steps to curb robocallers and adopts stiffer penalties for robocallers (particularly robocallers who intentionally violate the law). The bill awaits further action in the Senate, which passed its own robocall legislation, the Traced Act, earlier in the year. The House bill passed on a 429-3 vote, and the Senate bill passed 97-1.
With overwhelming majorities in support of taking some kind of action against robocallers in the current Congress, chances are good that the House and Senate will reconcile their bills before the end of 2020. Both bills address caller ID authentication and robocall blocking. The bills would require the FCC to adopt regulations requiring carriers to implement call authentication technologies, with the Senate bill directing the FCC to enact the STIR/SHAKEN authentication framework. The Senate bill does give the FCC discretion not to adopt call authentication regulations if the Commission finds industry has sufficiently adopted or made plans to adopt the STIR/SHAKEN framework absent FCC regulations.
For its part, the Commission is encouraging industry to do just that. In a recent Further Notice of Proposed Rulemaking (“NPRM”), the Commission strongly encouraged large carriers to put the STIR/SHAKEN framework in place before the end of the year, but Chairman Pai has encouraged industry solutions and voluntary adoption of caller authentication technologies over FCC regulation. The Commission’s NPRM also clarified that carriers can start offering call-blocking services to curtail illegal robocalls, and the FCC suggested that voice service providers should be able to offer an opt-out blocking service with no additional line-item charge to consumers, although it did not propose a rule requiring carriers not to charge for blocking services. (The House bill would codify the requirement that carriers do not add line-item charges for caller ID authentication or robocall blocking.)
The House and Senate bills would significantly increase penalties for robocallers who intentionally make prohibited calls and create an interagency working group to try to combat illegal robocalls. The harsher penalties would be in addition to the penalties the FCC is already authorized to impose on illegal robocalls and could be as much as an additional $10,000 per violation. The interagency working group proposed by both bills would bring together a variety of federal and non-federal law enforcement and government agencies, including the Department of State, Department of Homeland Security, FCC, the Federal Trade Commission, and state Attorneys General. The goal of the working group would be to better coordinate law enforcement responses to illegal robocalls and (through the Department of State) to work with the foreign governments where many robocall scams originate to encourage heightened enforcement in those countries too.
The House bill also contains a number of other changes to the FCC’s authority related to robocalls. It would extend the statute of limitations for the Commission to pursue robocalling and caller ID spoofing violations – which are one year and two years, respectively – to four years. The bill would also allow the FCC to initiate enforcement proceedings without first issuing a citation to the entities that are not typically regulated by the Commission. The House bill clarifies that the called party is the current subscriber or user of a phone number as well (as opposed the caller’s intended recipient).
For consumers annoyed by constant robocalls, it remains to be seen whether these efforts pay off. Caller ID authentication should help consumers better judge whether to answer a call and blocking technologies will allow carriers to eliminate some obviously illegal robocalls. However, as long as it remains cheap for robocallers to make millions (or billions) of calls and profits from those calls outstrip the cost to make them, robocallers will continue to be an issue for consumers. Because many, if not most, robocall scams originate outside the United States, Congress and the FCC also face jurisdictional limits on their ability to stop unwanted robocalls.
As long as robocalls exist, expect Congress and the FCC to react to the consumer complaints they receive about the issue, and for updates on what Congress and the FCC are doing on robocalls, keep reading CommLawBlog.