The FCC also released a notice of proposed rulemaking on implementation of the TRACED Act requirement to develop a process for reporting robocall and spoofing violations.
12/10/2020 14:00
The Federal Communications Commission included in its December meeting a draft Telephone Consumer Protection Act order on call exemptions and a notice of proposed rulemaking to implement the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED) Act.
The meeting was the last one of 2020. It featured a final appearance by Commissioner Michael O’Rielly. New FCC Commissioner Nathan Simington was confirmed by the U.S. Senate this week.
Before the meeting, the FCC adopted an order on reconsideration of its previous interpretation of the TCPA that permitted certain government and government contractor calls without consumers’ prior express consent and therefore removed the item from the meeting agenda.
The draft of the order has not been released, but it stems from the 2016 declaratory ruling and order on the TCPA and unanswered questions on call exemptions. ACA plans to continue advocacy on this item over the next few weeks. It is expected to be finalized by Dec. 20.
ACA International filed an ex parte letter with the FCC before the meeting, expressing concerns about the proposal and a petition from the National Consumer Law Center (NCLC) asking the FCC to require callers to operationalize new opt-out, internal recordkeeping compliance and call frequency limitations. It also proposes one message “per event” for non-marketing prerecorded messages to residential landlines that, if adopted by the FCC, would almost certainly be vacated on appeal.
In the letter to the FCC, ACA’s Vice President and Senior Counsel of Federal Advocacy Leah Dempsey calls for it to adopt a safe harbor when callers comply with other federal regulations that already govern telephonic outreach and ensure that such requirements or restrictions do not create tension with other federal laws.
For example, the Consumer Financial Protection Bureau’s recent debt collection rule establishes a limit of seven calls per week, among other requirements.
“If callers—like ACA’s members—comply with the CFPB’s call limits, they should not be subject to conflicting FCC conditions on the number of calls allowed under the non-marketing exemptions,” Dempsey said.
The FCC, if it does adopt new limits, should at a minimum respect the CFPB’s recent rule and other federal rules on debt collection outreach.
ACA submitted comments to the FCC on the exemptions in October, requesting that the commission not remove or narrow the exemption, including by arbitrarily limiting the number of times a business can contact its customer for non-marketing or informational purposes, imposing a new opt-out process, or adopting additional recordkeeping requirements. Such changes would ultimately not benefit consumers that need to receive non-marketing calls and are unnecessary given existing incentives on businesses to limit the number of non-marketing calls that they place.
Proposed Rulemaking on Robocall Violations Online Portal
Meanwhile, the FCC also released a Notice of Proposed Rulemaking (NPRM) to implement Section 10(a) of the TRACED Act on creating “an online portal for private entities to submit information about robocall and spoofing violations.”
According to the NPRM, “Congress directed the commission to establish regulations, no later than June 30, 2021, to create a process that ‘streamlines the ways in which a private entity may voluntarily share with the commission information relating to a call or text message that violates the law regarding robocalls or spoofing.”
It will be available for public comment upon publication in the Federal Register.
Next week, the FCC will also continue implementing requirements of the TRACED Act in a meeting of its Hospital Robocall Protection Group at 10 a.m. EST Monday, Dec. 14.
The TRACED Act provides that the group must issue recommended best practices regarding how voice service providers can better combat unlawful robocalls made to hospitals; how hospitals can better protect themselves from such calls, including by using unlawful robocall mitigation techniques; and how the federal government and state governments can help combat such calls, according to the meeting notice.
Three working groups established to address these best practices will present recommendations at the meeting and the full group will vote on the recommendations.
Catch up on more about the TRACED Act in ACA’s latest episode of ACA Cast with Dempsey and Mark Brennan, partner at Hogan Lovells in Washington, D.C.