House Passes Bill to Curtail Unwanted Automated Phone Calls
August 13, 2019
On July 24, 2019, the U.S. House of Representatives passed the “Stopping Bad Robocalls Act.” The bill would amend the Telephone Consumer Protection Act (“TCPA”). The most notable change is that the bill directs the Federal Communication Commission (“FCC” or “Commission”), within a reasonable time period, to prescribe regulations for providers of voice service to implement caller identification information authenticity technology at no additional cost to the subscriber. A well-known example of such technology is STIR/SHAKEN, which creates a digital signature on both sides of the call to prevent companies from altering the Caller ID information associated with the caller to display a nearby area code or an entire phone number.
The bill also instructs the Commission to create a national database for numbers reassigned from one customer to another, which will provide companies with a “comprehensive and timely” list of such numbers. This helps companies avoid accidently calling an unrelated person without their prior express consent instead of their customer who they had intended to contact. In this way, companies can avoid accidently violating the terms of the TCPA as well as the fine that comes with such violations.
The bill provides for more protections against such incidental violations by enacting a Safe Harbor Rule for reassigned numbers. This rule means that when a company has searched the database and calls a number that had not been listed as reassigned, so long as it followed every other part of the law, it will not be held liable. This inclusion is likely a response to the DC Circuit Court of Appeal striking down a similar FCC regulation in ACA International, et al., v. Federal Communications Commission and United States of America (2018) as “arbitrary and capricious” because the regulation then lacked statutory support.
The House’s bill shares a similarity with the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (“TRACED Act”) passed by the Senate on May 23, 2019 in that they both require the implementation of caller identification information authenticity technology. However, the TRACED Act also explores new ways to enforce the TCPA. For example, it directs the FCC and DOJ to convene an interagency working group that will submit a report to Congress on how to prevent and prosecute such violations. The bill would also allow for civil forfeiture penalties for TCPA violations. Another distinction between the bills is that TRACED lacks the provision regarding the creation of a reassigned number database.
There seems to be some energy to enact TCPA reforms during this legislative session. After the House vote last week, Senator Ed Markey (D-MA) tweeted that he is looking forward to working with Senator John Thune (R-SD), both of whom were original sponsors of the TRACED Act, in a conference committee with Representatives Frank Pallone (D-NJ 6th District) and Greg Walden (R-OR 2nd District) to consolidate the bills.
Viewed as a whole the proposed legislation represents a mixed bag for many companies. While many might welcome the implementation of a reassigned number database and accompanying safe harbor, others might question the need for increased governmental enforcement of the TCPA when private enforcement in the form of class-action lawsuits has already produced a veritable tidal wave of TCPA-related litigation. Because of the numerous changes these legislative efforts could create, businesses engaged in telephone solicitation or any type of automated messaging should carefully monitor future developments.
If you would like additional information regarding the above legislative efforts, or if you are in need of assistance with TCPA litigation or compliance, please contact Charles Zdebski at 202.659.6605 (czdebski@eckertseamans.com).
This Utilities and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.
© Eckert Seamans Cherin & Mellott, LLC, 2019, all rights reserved.