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Proposed TRACED Act May Increase FCC Enforcement Power Over Robocalls

April 03, 2019

Recent legislative developments in both the US House of Representatives and the US Senate indicate that further regulation of robocalls may be on the horizon. On March 7, the House introduced HR 1602, the House version of the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act. On April 3, the Senate Commerce Committee unanimously approved its companion bill (S 151), setting the stage for a vote by the full Senate.

TRACED aims to regulate robocalls and to increase enforcement of the Telephone Consumer Protection Act (TCPA). The TRACED Act expands the Federal Communications Commission’s (FCC) power to regulate robocalls and requires voice service providers to adopt call authentication technologies. It also extends the statute of limitations allowing the FCC to initiate enforcement actions up to three years after placing the robocall. Additionally, violators face increased penalties of up to $10,000 per intentional violation of telemarketing restrictions.[1]

TRACED builds on FCC and industry efforts to curb robocalls by relying on technological solutions as well as enhancing the FCC’s TCPA enforcement arsenal. The new law, however, does not address the considerable uncertainty caused by the US Court of Appeals for the DC Circuit’s decision in ACA International v. Federal Communications Commission released last year. Should TRACED become law, it will be important for companies engaging in telemarketing—either by voice calls or text messages—to understand the act.

KEY PROVISIONS OF THE PROPOSED TRACED ACT

STIR/SHAKEN Authentication Framework. The TRACED Act would require voice service providers to adopt call authentication technologies—known as the “STIR/SHAKEN authentication framework”—to enable telephone carriers to verify the legitimacy of incoming calls before completing such calls to consumers. Both the FCC and Federal Trade Commission (FTC) have supported adoption of the STIR/SHAKEN system. Under the proposed act, voice service providers would have 12 to 18 months from enactment to adopt the framework. A voice service provider demonstrating substantial hardship in purchasing or upgrading equipment to support call authentication would potentially be eligible for an extension of time to comply, at the discretion of the FCC. The act would also require the FCC to promulgate rules establishing when voice service providers may block calls based on information provided by the call authentication framework and to adopt a safe harbor shielding voice service providers from liability for inadvertent blocking of legitimate calls.

Expanded Statute of Limitations and Enhanced Civil Penalties. The TRACED Act would extend the time for the FCC to bring a civil enforcement action for intentional violations of the TCPA to three years after placing a robocall. Currently, the FCC has only one year to bring such actions.[2] The TRACED Act would also broaden the FCC’s authority to assess a civil forfeiture penalty of up to $10,000 per call for intentional violations of the TCPA.

Creation of an Interagency Working Group. The TRACED Act would require the US Attorney General, in consultation with the FCC, to convene an interagency working group to study violations of the TCPA. In addition to the Attorney General and the FCC, the working group would consist of representatives from the US Departments of Commerce, State, and Homeland Security; the FTC; and the Bureau of Consumer Financial Protection. The TRACED Act would require the working group to study TCPA enforcement and undertake a number of considerations, including whether there are additional resources for preventing and prosecuting criminal violations of the TCPA, such as extending civil enforcement authority to the states.

SUPPORT FROM ATTORNEYS GENERAL

On March 5, the attorneys general of all 50 states, the District of Colombia, Puerto Rico, Guam, and the US Virgin Islands wrote a letter to the Senate Commerce Committee expressing support for the TRACED Act. The state attorneys general cited the increase in robocalls over recent years, which they say have gone up by more than 36% in 2018. They also cited reports from the FTC and FCC asserting that in 2017 alone, consumers reported over $290 million in losses due to telemarketer fraud.

HOW WE CAN HELP

Morgan Lewis regularly advises clients on TCPA compliance. We routinely advise a wide array of retailers, consumers, carriers, and technology companies on these issues, handling some of the largest TCPA class actions in the country, and representing companies on similar issues before the FCC, FTC, and state attorneys general. We can also assist companies in advocating before the FCC on how the agency should promulgate rules should Congress enact TRACED into law. If we can be of assistance to you, please contact any of the following Morgan Lewis lawyers:

Philadelphia
Gregory T. Parks
Ezra Church
Kristin Hadgis

Washington, DC
Ronald Del Sesto
Andrew Lipman

Miami
Robert Brochin
Brian Ercole

Los Angeles
Joe Duffy

San Francisco
Molly Moriarty Lane



 

[1] Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, S. 151, 116th Cong. (1st Sess. 2019).

[2] 47 U.S.C. § 503(b)(6)(A)(i).