With a year-over-year rise in the number of consumer complaints about illegal, scam calls, pressure is mounting for elected official to be tough on robocalls.  Indeed, pressure was ratcheted up even further this week when HBO’s John Oliver made the issue a topic of heavy discussion on his popular show Last Week Tonight with John Oliver.  Now, fifty state attorneys general and ten United States Senators have thrown their weight behind the TRACED Act, a bill recently reintroduced by Senator John Thune (R-S.D.) and Senator Ed Markey (D-Mass.), which, if enacted, would amend the TCPA to provide for more enhanced administrative enforcement powers and increased civil penalties against both good and bad actors alike.

Unfortunately, however, while John Oliver is good at bringing popular attention to issues of public debate, his segment fails to tell the full story.  Oliver, like many politicians, portrays all “robocalls” as problematic, even though robocalls and automated text messages deliver important value to consumers on a daily basis, such as by alerting and delivering to consumers information and alerts about potential financial fraud, school and weather emergencies, or valuable coupons and marketing promotions.  In short, despite the attacks from pundits and politicians, “robocalls” are not the problem – illegal robocalls are.  The TRACED Act, which seeks to crack down on robocalls does little to address the concerns of law-abiding businesses, many of whom have been targeted by serial litigators who use the TCPA’s uncapped statutory damages as leverage to demand large settlements on weak claims.

The TRACED Act:

As we’ve detailed several times already this year, Congress’s bipartisan attack on illegal robocalls and robotexts has resulted in the introduction of several TCPA-centric pieces of legislation (and even some newly proposed FCC regulations), including Representative Frank Pallone’s (D-N.J.) Stopping Bad Robocalls Act and the Thune-Markey TRACED Act.  The TRACED Act is designed to ramp up enforcement against unwanted robocalls and text messages and “give the FCC more flexibility to enforce the law.”  It includes provisions that:

• Broaden the FCC’s authority to levy civil penalties of up to $10,000 per call against violators who intentionally disobey telemarketing restrictions;

• Directs the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts from callers;

• Require providers of voice services to adopt call authentication technology, thereby enabling a telephone carrier to verify that incoming calls are legitimate and should be passed through to consumers;

• Expands TCPA enforcement powers to the Department of Justice, Federal Trade Commission, Department of Commerce, State Department, Department of Homeland Security, the Consumer Financial Protection Bureau, and other federal agencies and non-federal entities; and

• Requires the above-named agencies, along with the FCC and state attorneys general, to identify and report to Congress regarding deterrence improvements and increased civil and criminal prosecution of scam robocalls at both the federal and state levels.

State AGs and U.S. Senators Weigh In

Recognizing that unlawful and unauthorized robocalls are the primary source of consumer complaints their offices receive, on March 5, 2019, the attorneys general (“AGs”) of all fifty states, as well as those of Washington D.C., Puerto Rico, Guam, and the U.S. Virgin Islands, threw their support behind the TRACED Act via a letter sent to Senator Roger Wicker (R-Miss.) and Senator Maria Cantwell (D-Wash.), the Chairman and Ranking Member of the Senate Commerce, Science, and Transportation Committee, respectively.  The AGs were particularly vocal about their support for the bill’s requirement that all voice service providers adopt call authentication technology and the bill’s establishment of a working group across several state and federal government agencies that will be tasked with prosecuting TCPA and other robocall violations. 

The AGs’ letter was then followed by a press release issued on March 8, 2019, through which an evenly split bipartisan group of ten Senators, including Senators Marco Rubio (R-Fla.) and Richard Blumenthal (D-Conn.), also threw their weight behind the TRACED Act and the AGs’ comments, applauding the bill due to its “increased penalties for violators, [promotion of] call authentication and blocking, and [the] bringing [together of] federal agencies and state attorneys general to address obstacles to criminal prosecution.”  All ten of these Senators signed on as co-sponsors to the TRACED Act, providing the bill with the official support and backing of 12 of the Senate’s 100 members.

Looking Ahead

We can all agree that bad actors need to be held accountable for scam calls and for their intentional flouting of robocalling rules and regulations.  However, the TRACED Act only addresses one side of the issue; it does not address the rise of predatory TCPA cases that are filed by professional plaintiffs and plaintiffs’ attorneys every year against well-intentioned businesses that are simply trying to communicate with their consumers in good faith. Public officials need to be educated about how the TCPA impacts business and stymies innovation.  For that reason, we encourage businesses to engage with elected officials so that they can understand both sides of the issue.