In part one of a two-part series on our advocacy accomplishments, Vice President and Senior Counsel of Federal Advocacy Leah Dempsey reports on work with the Federal Communications Commission and advocating against problematic legislation limiting communication with consumers. Editor’s Note: This article is available for members only.
11/16/2020 16:00
By Leah Dempsey
This year ACA International members faced many challenges because of COVID-19, and ACA’s advocacy efforts focused on protecting members’ ability to continue to operate their businesses and employ thousands of people across the country. While significant time was spent pushing back on problematic House Financial Services Committee bills such as the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, ACA was also successful in moving the needle forward on several other initiatives. Below is a summary of some of the top issues ACA and its members made progress on in 2020.
Securing Protections for Callers in Regard to Call Blocking and Labeling
As ACA’s long battle against erroneous call blocking and labeling forges on, we continue to gain some momentum at the Federal Communications Commission on behalf of the accounts receivable management (ARM) industry. At the very beginning of the 116th Congress, it became clear that both Congress and the FCC were up in arms about eradicating “robocalls.” Unfortunately, they did not always make the distinction between robocalls placed by illegal and fraudulent actors and legal automated calls placed by legitimate businesses.
Over the past two years, ACA has seen many drafts of legislation, FCC actions, and one sweeping bill that became law—the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act—aimed at robocalls. The press, lawmakers, regulators, and even John Oliver all agreed that robocalls are bad and need to be stopped.
However, there has been one overarching problem in all these policymaking efforts. The language is too broad and impacts legitimate businesses, including ACA members, thousands of others in industries throughout the country as well as our coalition partners in Washington, D.C. Along the way, however, ACA has been able to make changes to improve these efforts and our work is slowly but surely paying off.
Below is a recap of some of the major milestones and efforts surrounding this issue.
The TRACED Act
After nearly a year of negotiating, Congress passed the TRACED Act at the end of 2019 and it was signed into law by President Donald Trump. ACA worked to include several improvements in the final version of the law:
- Removing the problematic definition of “called party.” The House bill defined the term “called party” to mean the “current subscriber or customary user of the telephone number to which the call is made.” This was removed in the final bill.
- Removing broad language about consent revocation. ACA urged Congress to ensure that businesses can designate certain channels where consumers’ revocations can be efficiently and accurately processed.
- Improved language concerning call blocking, noting it should be done with “transparency and effective redress options” for consumers and callers and assurance there will be no cost to callers for unblocking legitimate calls, stating that they must be “provided with no additional line item charge to consumers and no additional charge to callers for resolving complaints related to erroneously blocked calls.”
At the time, it was hard to explain why changing the language about transparency and redress benefited ACA members; it was an obscure victory to some. But, over the last several months at the FCC it has become clear that this language is essential in limiting broad safe harbors for carriers and prompted some important protection for consumers.
FCC Declaratory Ruling and Third FNPRM (July 2019)
Last summer, a declaratory ruling released by the FCC allowed voice service providers to block illegal and “unwanted” calls as the default before reaching consumers’ phones. The ruling, which went into effect immediately, requires providers to give consumers the opportunity to opt-out of the call blocking service.
While ACA was not happy with the ruling or action, and it was fodder for efforts this year to prove a negative impact on the industry outlined in our report with Number Sentry, the final ruling contained some critical changes from the draft version as a result of ACA’s advocacy. Most notably, the addition of a paragraph in the ruling directly addressed ACA’s concerns about seeking redress for erroneously blocked calls.
It states:
“While some parties have expressed concern about blocking of calls required for compliance with other laws, rules, or policy considerations, we believe that a reasonable call-blocking program instituted by default would include a point of contact for legitimate callers to report what they believe to be erroneous blocking as well as a mechanism for such complaints to be resolved. Further, callers who believe their calls have been unfairly blocked may seek review of a call-blocking program they believe to be unreasonable by filing a petition for declaratory ruling with the Commission. We also encourage voice service providers that block calls to develop a mechanism for notifying callers that their calls have been blocked.”
Robocall Report and 2020 Call Blocking Order
Fast forward to this past summer as the FCC began implementing parts of the TRACED Act and taking additional actions concerning call blocking and labeling. ACA’s advocacy continued to pay off in several ways. The FCC’s Robocall Report, required by the FCC’s 2019 Call Blocking Declaratory Ruling, finally acknowledged data provided by ACA and coalition partners outlining examples of erroneous blocking. ACA also submitted extensive data compiled by Number Sentry showing clear evidence of erroneous blocking and labeling.
Additionally, among the wins in the report, it listed contact information for voice service providers and analytics companies for callers to report erroneous labeling or blocking. Up until recently, it has been unclear where the ARM industry should even start to get their calls unblocked, and this put the onus on carriers to provide that information.
Subsequently, as the FCC worked to finalize an order surrounding the safe harbor for blocking calls this summer, ACA engaged in extensive advocacy that led to some important changes in the final draft. Notably, in his statement on the order, Commissioner Michael O’Rielly expressly recognized the harms of overbroad call blocking and the need for recourse. He also noted that the language ACA worked to secure in the TRACED Act mandated the FCC to provide additional protections to callers who are unfairly having calls blocked.
He stated, “At its heart, the TRACED Act is about targeting and eliminating illegal calls, not restricting legal and legitimate ones, and we need to make sure that our implementation of the legislation stays true to this purpose, through meaningful and expeditious redress mechanisms for such callers and providers.”
In this order, the FCC included some important points for callers, including but not limited to:
- Clarifying that voice service providers must maintain a single point of contact for blocking disputes but may also offer “a web portal, chat bot, or other electronic means of contact.” The investigation and resolution of complaints must “come at no cost to the caller, so long as the complaint is made in good faith.”
- Blocking disputes must be resolved in a “reasonable” amount of time depending on specific circumstances.
- Confirming that these redress mechanisms are conditions for obtaining the safe harbor established in the order.
Executive Orders and Legislation Limiting Industrywide Communications with Consumers Kept at Bay
In 2020, the Democrat-led House Financial Services Committee proposed nearly two-dozen bills that would have impacted ARM industry operations. The House version of the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the HEROES Act would have also severely restricted the ability of ACA members to operate and continue to communicate with consumers.
ACA proactively reached out to schedule and hold hundreds of meetings with congressional staff and members of Congress to educate them about why overbroad efforts in these bills would ultimately harm not only ACA members and their employees, but also businesses and consumers.
While there have been some limitations that restrict the ability to collect on debt owed to the U.S. Department of Education, no other restrictions on the ARM industry ultimately made it into any final legislative packages thus far in the 116th Congress. ACA will continue to advocate for the industry on legislation during the lame-duck session, while also continuing to proactively push for bills that help ACA members with Paycheck Protection Program loans, including the Paycheck Protection Small Business Forgiveness Act (S. 4117) and the Small Business Expense Protection Act of 2020 (S. 3612).
In part two of this article series, Dempsey will focus on the influence of ACA’s advocacy on the Consumer Financial Protection Bureau’s final debt collection rule, pivoting engagement in response to the COVID-19 pandemic and working with the U.S. Supreme Court on key TCPA issues, including the upcoming Facebook v. Duguid ATDS case with oral arguments Dec. 8.
Dempsey is ACA’s vice president and senior counsel of federal advocacy.