CONGRESS REVISES THE TCPA AND THE SUPREME COURT TAKES UP REVIEW OF ITS CONSTITUTIONALITY

January 27, 2020

Congress recently approved legislation designed to augment the Federal Communications Commission’s (“FCC” or “Commission”) ability to enforce the Telephone Consumer Protection Act (“TCPA”).  Dubbed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (or “TRACED Act”), this new legislation will make the following revisions to existing law:

  • The FCC will no longer be required to have previously issued a citation to a caller before imposing a penalty for an alleged violation of the TCPA.  The FCC will also now have up to four (4) years to pursue an alleged intentional violation of the TCPA, and the legislation also adds an additional penalty for intentional violations of up to $10,000.
  • The legislation requires the FCC to issue an annual report to Congress detailing its enforcement activities so Congress can ensure problems targeted by the legislation are being addressed by the Commission.  The legislation also specifically requires the FCC’s annual report to include proposals for additional legislation addressing robocalls.  In addition to this annual report, the FCC must also issue a report to Congress regarding the implementation progress of the reassigned number database it agreed to implement in 2018.
  • The legislation directs the FCC to initiate a proceeding to protect consumers from so-called “one-ring scams” (i.e. an entity overseas that makes calls to consumers’ domestic phone numbers attempting to induce the consumer to call the overseas number back, potentially resulting in hefty charges).
  • The legislation directs the FCC to implement rules requiring all providers of voice service to adopt call authentication technologies within eighteen (18) months.  The legislation specifies that the FCC must mandate the use of the SHAKEN/STIR framework for internet-protocol based communications networks but provides the FCC with the discretion to identify other call identification technologies that could be effective  for other communications networks.  The FCC must also thereafter periodically evaluate the effectiveness of call authentication technologies used by providers.
  • The legislation requires the Attorney General, in consultation with the FCC, to convene an interagency task force to study the government prosecution of TCPA violations. Among other things, the task force will: (1) determine how federal law and budgetary constraints inhibit enforcement of TCPA violations; (2) identify existing and additional policies and programs to increase coordination between federal departments and agencies and the states for enforcing and preventing violations of the TCPA; and (3) identify existing and potential international policies and programs to improve coordination between countries in enforcing the TCPA and similar laws.
  • The legislation directs the FCC to register a consortium of companies engaged in private-led efforts to trace back the origin of suspected unlawful calls. It also creates a certification process for carriers that have participated in private-led efforts to trace back the origin of suspected unlawful calls, and it requires the FCC to publish a report on the participation by carriers in private-led efforts to trace back the origin of suspected unlawful calls and to take appropriate enforcement action.

Unfortunately, the TRACED Act does not supplement or provide any clarification regarding the statutory definition of an Automatic Telephone Dialing System (“ATDS”).  Thus, calling parties will need to wait for further guidance from the FCC to resolve the controversy sparked by the United States Court of Appeals for the District of Columbia Circuit’s rejection of the FCC’s previous definition of that term.

Interestingly, the TRACED Act is not the only recent development that could alter the present form of the TCPA.  Subsequent to the passage of the TRACED Act, on January 10, 2020, the Supreme Court accepted a case for review challenging the constitutionality of the TCPA.  Specifically, the Supreme Court will review the decision of the United States Court of Appeals for the Fourth Circuit in the case of American Association of Political Consultants, Inc. et. al v. Federal Communication Commission which found  that the TCPA is unconstitutional.  The calling party in that case objected to a 2015 amendment to the TCPA that created exemptions from the Act for calls “made solely to collect a debt owed to or guaranteed by the United States.” 

The Fourth Circuit subjected the TCPA and its debt-collection amendment to a First Amendment strict scrutiny analysis and ruled that the statute failed that test.  The Court reasoned that the statute is impermissibly under-inclusive, because the debt-collection amendment authorized many of the calls that the TCPA was enacted to prohibit.  However, despite the Fourth Circuit’s finding that the debt-collection amendment was unconstitutional, the Court did not invalidate the entire statute.  Rather, it severed the debt-collection amendment from the TCPA and left the rest of the statute intact.

The Government appealed the Fourth Circuit’s ruling and asked  the Supreme Court to find that the debt-collection amendment does not violate the First Amendment and determine whether the proper remedy for any constitutional violation is to sever the amendment from the remainder of the statute.  Thus, if the Supreme Court agrees with the Fourth Circuit that the TCPA’s debt-collection exemption is unconstitutional but finds that the amendment cannot be severed, the entire statute could be rendered invalid — a ruling that would call into question the validity of thousands of pending TCPA lawsuits.

If you would like additional information regarding the TRACED Act or the Supreme Court’s review of the TCPA’s constitutionality, please contact Rob Gastner at 202.659.6674 (rgastner@eckertseamans.com), Kevin Allen at 412-566-6866 (kpallen@eckertseamans.com), Louis DePaul at 412-566-6142 (ldepaul@eckertseamans.com), or Charles Zdebski at 202.659.6605 (czdebski@eckertseamans.com).

This Telecommunications Update is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.

© Eckert Seamans Cherin & Mellott, LLC, 2020, all rights reserved.

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Robert J. Gastner Photo Washington, D.C.

Robert J. Gastner

Member - Washington, D.C.

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