In the final days of 2019, the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”) was signed into law to combat the increasing number of illegal robocall practices and other intentional violations of telemarketing laws. The TRACED Act, a bipartisan bill, first introduced in Congress in 2018, broadens FCC authority to levy Telephone Consumer Protection Act (“TCPA”) civil penalties and extends the time period for the FCC to catch and take civil enforcement action against intentional violations. The new law will not put an immediate end to improper robocalling practices, which have been exacerbated in recent years due to the growing industry of “spoofing” technology, but will certainly cause individuals to think twice before engaging in illegal robocalling activity.

It is important to note that not all robocalling practices are illegal – generally robocalls are permissible if the company has received written consent from a consumer to call in that manner. There are also a few types of robocalls that are permissible without written consent: purely informational calls (e.g. flight cancellation, appointment reminders, schools delays), messages from certain healthcare providers, political calls, messages from charities and debt collection calls (excluding services that offer to reduce your debt).

Below are several key provisions of the TRACED Act likely to be impactful in curbing improper robocall activity:

  • Requires the FCC to promulgate rules to help protect consumers from receiving unwanted calls or text messages from a caller with an unauthenticated numbered. Note: The FCC’s rulemaking process for this provision has already been underway.
  • Requires the FCC to promulgate rules establishing when a provider may block a call based on information provided by a call authentication framework, and establishing a process to permit a calling party adversely affected by the authentication framework to verify the authenticity of their calls.
  • Requires the FCC and Department of Justice to assemble an interagency working group to study and report to Congress on the enforcement of the prohibition on certain robocalls – specifically looking into how to better enforce against robocalls by examining issues such as the types of policies, laws and constraints that may be inhibiting enforcement.
  • Requires the FCC to initiate a proceeding to determine whether its policies regarding access to numbers resources could be modified to aid in reducing access to numbers by potential robocall violators.
  • Requires voice service providers to develop call authentication technologies. Providers may not charge for these services, and are given a safe harbor from liability for making reasonable efforts to effectively implement such technology.
  • Implements a forfeiture penalty for violations (with or without intent) of the prohibition on certain robocalls.
  • Increases the TCPA fines for robocall violations and extends the FCC’s statute of limitations on such violations. A violator can be fined up to $10,000 per call.

Much praise has been directed towards the recently enacted TRACED Act, including Senator Chuck Schumer who highlighted on Twitter that “Americans were battered by 48 billion robocalls last year (2019)…I’m so proud I fought for the #TRACEDact” and FCC Chairman Ajit Pai in a statement on behalf of the FCC, “I applaud Congress for working in a bipartisan manner to combat illegal robocalls and malicious caller ID spoofing”. Nonetheless, only time will tell how effective the new law will be in deterring the practice of illegal robocalls, which only seems to be getting worse.

The recently enacted TRACED Act comes together with other areas of attention on the TCPA generally of late. In June 2019, the U.S. Supreme Court issued its long awaited decision in PDR Network LLC v. Carlton, addressing the issue of whether the Hobbs Act requires the district court to accept the 2006 FCC Order 2006, which provides the legal interpretation for the TCPA. Unfortunately, the Court dodged the issue, instead ruling anonymously that the lower court failed to consider two preliminary issues. A final decision in this case had been long-awaited, and the wait continues. There is also a growing circuit split over the definition of Automatic Telephone Dialing System (ATDS) under the TCPA, and the FCC recently sought comments from the public on the scope of the TCPA, including the ATDS definition. Needless to say 2020 should be an interesting year for the TCPA.