Sens. Markey, Thune, Reintroduce Legislation Aimed at Mitigating Robocall Scams

The new legislation draft includes additional reporting to Congress and changes to intent requirement for a violation.

1/17/2019 3:30 PM

Sens. Markey, Thune, Reintroduce Legislation Aimed at Mitigating Robocall Scams

Senate Majority Whip John Thune, R-S.D., along with U.S. Sen. Ed Markey, D-Mass., on Thursday reintroduced controversial bipartisan legislation that aims to mitigate robocall scams.

While the legislation contains some important tools for handling bad actors, ACA International continues to raise concerns about its failure to draw clear distinctions between legitimate callers and scammers, and to provide important protections for legal calls.

“We understand why the senators are seeking to target scam robocalls which are bothersome to consumers, and harmful to legitimate efforts, such as those of ACA members who need to communicate,” said ACA CEO Mark Neeb. “Nevertheless, policymaking in this area must consider the benefits of having the ability to communicate with consumers, and that expanding an already broad law is unlikely to make the worst actors follow the law.”

As part of our larger ongoing advocacy efforts surrounding Telephone Consumer Protection Act reform, ACA will continue to work with the Senate Commerce Committee to help it understand the importance of calls about a consumer’s financial situation that they often want and need.

“While ACA continues to review and seek feedback on the legislation, in our initial review we see some additional accountability to Congress if the authentication framework does not serve its intended purpose to only impede scam calls,” said ACA International’s Vice President and Senior Counsel of Federal Advocacy Leah Dempsey. “However, as an overarching matter, we believe Congress and the Federal Communications Commission would be better served by narrowly focusing on penalizing scam callers who are in no way seeking to follow the law, and not expanding the TCPA which has proven time and again to be overly complex, out of date and abused by plaintiffs’ lawyers.”

The Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, S. 151, would require call authentication and blocking adoption, among other changes, including to:

  • Broaden the authority of the FCC to levy civil penalties of up to $10,000 per call. Notably, the new draft removes some “intent” requirements.
  • Extend the window for the FCC to take civil enforcement action against intentional violations to three years after a robocall is placed.
  • Directs the FCC to provide a safe harbor for blocking calls based in whole or in part, on the information provided by the call authentication framework under SHAKEN/STIR
  • Directs the Department of Justice, FCC, Federal Trade Commission, Department of Commerce, Department of State, Department of Homeland Security, the Consumer Financial Protection Bureau, and other relevant federal agencies, as well as state attorneys general and other non-federal entities to identify and report to Congress on improving deterrence and criminal prosecution at the federal and state level of robocalls.
  • Require voice service providers to adopt call authentication technologies, enabling a telephone carrier to verify that incoming calls are legitimate before they reach consumers’ phones.
  • Direct the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts from callers.

The proposed legislation also includes a safe harbor from liability for unintended or inadvertent blocking of calls and establishes a process to permit a calling party to verify the authenticity of their calls. ACA continues to advocate for additional clarity on this provision of the legislation to ensure that carriers are not blocking legal calls carte blanche.

The new draft requires voice service providers to adopt STIR/SHAKEN rather than “an appropriate and effective call authentication framework.”

According to the North American Numbering Council, a federal advisory committee for the FCC, the SHAKEN/STIR protocols for call authentication include two technical specifications that confirm a caller’s identity and then “allow communications service providers to attest the legitimacy of a calling party’s number.”

It remains unknown what SHAKEN/STIR will include and what the authentication process will require. ACA is actively involved in these discussions.

A new draft of the legislation adds some recourse for this process, requiring the FCC to:

  1. Submit a report to the Senate and House Commerce Committees with analysis of the implementation and efficacy of SHAKEN/STIR within a year of enactment of the TRACED Act and;
  2. Conduct a proceeding every three years regarding the efficacy of the call authentication framework.

ACA International continues to work with Congress to improve upon the TRACED Act in the Senate as well as watch for companion legislation from the U.S. House of Representatives.

Related Content from ACA International:

Legislation Aimed at Mitigating Robocall Scams Lacks Important Protections for Legitimate Calls

ACA Cast: The Future of the TRACED Act Aimed at Mitigating Robocall Scams

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