Just over two weeks into the 116^th Congress’s session, two powerful, telecommunications-focused Senators have reintroduced a bi-partisan piece of legislation that, if enacted, would amend the TCPA to provide for more enhanced administrative enforcement powers and increased civil penalties.

On Thursday, January 18, Senator John Thune (R-S.D.), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet, and Senator Ed Markey (D-Mass.), author of the TCPA, reintroduced the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act (S. 151).  Originally introduced in November 2018, the bill proposes several changes to the TCPA that, according to the Senators, are designed to ramp up enforcement against unwanted robocalls and text messages and “give the FCC more flexibility to enforce the law.”  The bill appears to be identical to the November 2018 version and includes:

• A provision that purportedly broadens the FCC’s authority to levy civil penalties of up to $10,000 per call against violators who intentionally disobey telemarketing restrictions;
• A provision directing the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts from callers;
• A provision requiring 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;
• A provision expanding 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
• A provision requiring 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.

In a press release announcing the bill’s introduction, Senator Thune made clear that the bill is intended to focus on spam calls and texts only, noting that “the TRACED Act holds those people who participate in robocall scams and intentionally violate telemarketing laws accountable and does more to proactively protect consumers.”  However, such intentions do not mean that good-faith marketers are off the hook, as the bill’s expanded enforcement authority appears to cast a broad net over telemarketing activities and does not explicitly relieve businesses of the growing pains they face from overzealous and abusive TCPA litigation.

As we mentioned before, legislation of this type is well-intentioned and good-natured, targeting bad actors that need to be held accountable.  But by failing to address the other side of the issue – i.e., predatory TCPA litigation – Congress is implicitly signaling that it does not understand the concerns of legitimate businesses and the risks good-faith marketers face whenever they make calls or send messages. 

The silver lining of this bill’s introduction is that Congress appears to be very interested in focusing on telemarketing and the TCPA during this term.  This provides businesses with an opportunity to educate Representatives and Senators about the negative effects the TCPA has on legitimate businesses who are regularly threatened with litigation and how the law truly harms more good-faith actors than it does bad-faith actors.  If you or your business would like to discuss potential legislative strategies or would be interested in lobbying for common-sense TCPA reform, we encourage you to contact any member of the TCPA Defense Force.