TRACED Act Clears Senate
Legislation passes with amendment to require FCC to submit annual report on illegal robocall enforcement activities to Congress. Companion legislation is pending discussion in the House Energy and Commerce Committee.
5/23/2019 2:00 PM
The U.S. Senate passed S. 151, The Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED Act) with important clarifications included in report language surrounding concerns raised to Congress by ACA International. The bill passed by a 97-1 vote.
ACA International has been advocating for recognition of legitimate callers in the report language for months.
As noted in the report accompanying S. 151, “Not all robocalls are illegal or unwanted. The majority of companies who use robocalls are legitimate companies. And valid robocalls can benefit consumers. Many important services are carried out via robocalls when institutions and call recipients have established a prior relationship: pharmacies provide updates to consumers that a prescription is ready for pick up; school closing announcements provide families with important and timely information; banks provide customers with fraud alerts, data security breaches, and even calls to convey measures consumers may take to prevent identity theft following a breach; auto manufacturers can warn vehicle owners of urgent safety recalls. These legitimate calls can have life or death consequences for the intended recipient.”
The TRACED Act, introduced by Senate Majority Whip John Thune, R-S.D., along with U.S. Sen. Ed Markey, D-Mass., would give the government authority to levy fines of up to $10,000 per call, according to The Hill. A House companion bill (H.R. 1602) sponsored by U.S. Rep. David Kustoff, R-Tenn., is pending discussion by the House Energy and Commerce Committee.
ACA International notes that the TRACED Act expands the Federal Communications Commission’s authority to mitigate and enforce rules around illegal robocalls. ACA has supported narrowly focused efforts on penalizing scam callers who are in no way seeking to follow the law, however has expressed serious concerns about expanding the Telephone Consumer Protection Act, which has proven time and again to be overly complex, out of date, and abused by plaintiffs’ lawyers.
“ACA International appreciates the Senate’s recognition of the importance of legitimate business communications in its report language and urges the FCC to consider the distinctions made about calls where there is an established business relationship,” said ACA International’s Vice President and Senior Counsel of Federal Advocacy Leah Dempsey.
The report language also includes the important clarification that, “It would be an affirmative defense to an action pursuant to 47 U.S.C. 227(b)(4)(B) to demonstrate a practice of having prior business relationships with the overwhelming majority of intended call recipients. The Act would not apply the heightened intent standard to violations other than violations of 47 U.S.C. 227(b).”
Furthermore, the report language also provides some critical clarifications surrounding any safe harbors for blocking calls, “When establishing the rules for when a voice service provider may block a voice call, the Committee expects the FCC to consider the benefits of protecting consumers from illegal robocalls, and also the burden on callers and consumers in allowing voice service providers to block calls without providing prior or contemporary notice to the caller and an opportunity for the caller to rebut a blocking determination. When establishing the process by which callers may have their calls unblocked, the FCC should consult call originators in addition to voice service providers. The safe harbor should not be used to support blocking or mislabeling calls from legitimate businesses.”
The report adds, “The process established by the FCC should require voice service providers to unblock improperly blocked calls in as timely and efficient a manner as reasonable. The FCC should ensure that: (1) legitimate businesses and institutions conveying information to consumers are not unreasonably impacted by the TRACED Act or voice service providers’ implementation of STIR/SHAKEN; and (2) the authentication and unblocking process under STIR/SHAKEN is not unduly burdensome to and does not unreasonably negatively impact legitimate call originators. Although blocking may be warranted in certain instances, the Commission should require that voice service providers provide their subscribers with a meaningful opportunity to understand that call filtering or blocking of certain inbound calls to their telephone number is being employed and should consider the feasibility of providing subscribers a meaningful and persistent opportunity to reject such blocking.”
Of note, the report language contains more detailed guidance to departments and agencies than is provided in the accompanying bill. They do not hold the weight of the law but are used to determine congressional intent in court and at agencies.
TRACED Act Overview To Date
The TRACED Act passed the Senate Commerce Committee with a unanimous vote after an April 3 markup. In general, it would require call authentication and blocking adoption, among other changes, related to the FCC's enforcement authority. It also includes stipulations for other regulators including the Federal Trade Commission, Department of Commerce, Department of State, Department of Homeland Security and the Consumer Financial Protection Bureau.
Specific components of the TRACED Act legislation would:
- Provide the FCC with authority to issue additional civil penalties of up to $10,000 per call on those individuals who intentionally violate section 227(b) of the Communications Act of 1934.
- Increase the FCC's ability to initiate enforcement actions against those entities that make illegal robocalls with the intention to violate the law by extending the statute of limitations for such violations from one year to three years, and eliminates the citation requirement for such violations.
- Direct the FCC to require voice service providers to implement the STIR/SHAKEN authentication framework within 18 months of enactment if providers have not already taken certain steps to do so, while allowing the FCC to extend the deadline in the event of undue hardship.
- Direct the FCC to study the implementation of STIR/SHAKEN and the efficacy of the STIR/SHAKEN authentication framework every three years and report findings on actions taken to revise or replace STIR/SHAKEN if the FCC determines it is in the public interest.
- Require the FCC to develop rules pertaining to a safe harbor for voice service providers that inadvertently block legitimate callers under a STIR/SHAKEN protocol and have used reasonable care, and allowing parties adversely affected to verify the authenticity of their calls.
- Require the FCC to conduct a rulemaking regarding methods to protect subscribers from receiving unwanted calls or text messages that use an unauthenticated number.
- Direct the Attorney General to convene an interagency working group to study the prosecution of violations of section 227(b) of the Communications Act of 1934 and to provide a report on its findings within 270 days of enactment.
- Direct the FCC to conduct a rulemaking to consider ways to modify FCC policies to reduce access to numbers by potential violators within 180 days of enactment.
The Senate also adopted an amendment introduced by U.S. Sen. Jerry Moran, R-Kansas, that would require the FCC to submit an annual report to Congress detailing its enforcement activities related to the laws, regulations, and policies concerning robocalls and spoofed calls, and specifying the number of complaints received, complaints issued, and notices of apparent liability issued by the FCC.
ACA International will continue to follow the progress of the TRACED Act to provide industry and member updates. As part of our larger ongoing advocacy efforts surrounding TCPA reform, ACA will continue to work with members of Congress and regulators to help them understand the importance of the connection between legitimate businesses and consumers to discuss information they often want and need and the use of new technologies.
This includes working with the FCC on its latest Further Notice of Proposed Rulemaking on “Advanced Methods to Target and Eliminate Unlawful Robocalls” slated for discussion at its open meeting on June 6, 2019.
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