The Federal Communications Commission (“FCC”) has taken several steps in recent years to deter robocalls of all kinds, with some success, but not enough to give us poor ordinary folks the telephone peace and quiet for which we yearn. Last year, Congress passed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”), giving the FCC more authority to punish violators of the Telephone Consumer Protection Act (“TCPA”) and requiring the FCC to take certain steps. (Needless to say, the TRACED Act followed the current custom of determining the acronym first and figuring out the full name of the statute later.) The FCC has now implemented some of its new statutory authority and has invited comments on what steps it should take next.
First, the FCC has issued an Order adopting three rule changes immediately, without inviting public comment, noting that they are doing what Congress directed them to do, so they would not have much discretion to make changes even if they did invite comments. First, the statute of limitations for fining robocall violators, senders of unsolicited faxes, and caller ID spoofers has been increased from one or two years to a uniform four years. (Robocalls use automated dialing systems or artificial or prerecorded voices to call residential numbers, except where the called party has consented or in emergency situations. Spoofing is substituting false caller ID information in place of the actual calling name or number, usually to mislead recipients as to who is calling and to encourage recipients to answer calls they don’t want to receive.)
Second, the FCC will exercise its authority to fine robocallers up to $10,000 per call in addition to forfeitures otherwise authorized by the Communications Act. Third, the FCC will exercise its new statutory authority to issue Notices of Apparent Liability for Forfeiture without first issuing a warning citation to robocallers and spoofers – in other words, the FCC will no longer have to send a warning before it fires a shot.
Legitimate users of automated calling platforms (believe it or not they do exist and we’ve written about them) should pay particular attention to the FCC’s elimination of the warning citation requirement. Previously, any robocaller that was not otherwise subject to the FCC’s jurisdiction (which primarily covers telecommunications companies, private radio users, and broadcasters) had to be issued a citation, essentially a warning, saying that the FCC believed that the robocaller was violating the FCC’s rules and that if the robocaller continued its conduct, the FCC might take enforcement action. Now, even if a legitimate robocaller is not, or believes that it is not, intentionally violating the TCPA, the FCC may initiate enforcement action without warning. Because of this significant shift in the risk profile of using automated calling platforms, and in light of the considerable amount of ongoing litigation over what types of calls are legal or illegal, legitimate users may want to consult their TCPA counsel to ensure their practices comply with the law.
In a separate Notice of Proposed Rulemaking, the FCC invites comments on how it should fulfill its obligation under the TRACED Act to take steps to prevent “one-ring” scams. This scam involves placing a call but hanging up after one ring, with the intent that the call recipient will dial the caller ID to find out who called. In another version of the scam, the caller leaves a message asking the recipient to call a certain number to schedule a delivery or to obtain some kind of reward. In both cases, the callback number is an international number that causes the consumer to incur charges, with revenues shared with the scammer. Why would anyone call back to an international number? Because some international numbers (particularly in some Caribbean countries) use the North American Numbering Plan with 10-digit formats that look like domestic numbers, leading consumers to believe erroneously that the call will be part of their unlimited calling plan. In other words, if you call Area Codes 646 (Turks and Caicos) or 809 (Dominican Republic), you may regret it.
The FCC is trying to find ways to discourage one-ring scams, including better consumer education, encouraging voice service providers to block the calls, and examining what obligations can or should be imposed on international gateway providers. (The FCC has authorized domestic telephone companies to block calls from gateway providers that don’t cooperate in trying to block robocalls and scams and asked for information from seven gateway providers as to what they are doing to block the calls.)
One problem that both the FCC and the telephone industry face is how to figure out which calls to block, particularly since most of them originate from international locations where the FCC does not have jurisdiction to act at the source and where new bogus call detection techniques are not in play.
An interesting solution that the FCC has suggested is to require that whenever a call is dialed to an international destination, the caller receive a recording saying “this call is going to cost you big time – hang up now if you don’t want to pay” before the call is connected and charges are incurred. That would certainly cause a lot of people to hang up.
Robocallers and scammers make millions of calls at almost no cost and don’t have to succeed with more than a tiny fraction of them to make significant profits. That means that they are not going to walk away from the practice voluntarily, or even if they are slapped on the hand. The FCC is trying hard to do what it can to up the ante in a tough situation. It remains to be seen whether the new fireballs will explode with a really effective big “bang” or will fall into the ocean and fizzle.