In one of the few efforts to expand the Telephone Consumer Protection Act (TCPA), Democratic lawmakers introduced new legislation that includes changes to the revocation of consent, the definition of an automatic telephone dialing system (ATDS) and more.
Sen. Ed Markey (D-Mass.) and Rep. Frank Pallone (D-N.J.) sponsored the Stopping Bad Robocalls Act in companion bills in both houses of Congress in reaction to the U.S. Court of Appeals, D.C. Circuit’s recent decision in ACA International v. FCC. There, the federal appellate panel struck down the Federal Communications Commission’s (FCC) overly expansive definition of an ATDS found in its 2015 ruling.
The proposed legislation would remove the term “ATDS” from the TCPA and replace it with “robocall,” defined as “[a] call made (including a text message sent) … using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for a call made using only equipment that the caller demonstrates requires substantial additional human intervention to dial or place a call after a human initiates the series of calls; or … using an artificial or prerecorded voice.”
Although it does away with the oft-contested issue of “capacity” found in the ATDS definition, the proposed legislation incorporates text messages as well as additional types of equipment (predictive dialers, for example), broadening the scope of coverage. It also shifts the burden of proving human intervention to TCPA defendants.
Addressing consent, H.R. 6026 would establish that express consent may be revoked “at any time and in any reasonable manner, regardless of the context in which consent was provided.” Callers that violate the prohibitions on autodialed calls, robocalls or spoofing would face additional liability pursuant to the measure, which extends the statute of limitations to four years. This section of the bill would also eliminate the requirement that the FCC wait for a second offense, permitting the agency to immediately go after bad actors.
The legislation would keep the FCC busy, providing it with several tasks. One provision would mandate that the FCC create a nationwide database of consumer telephone numbers that have been reassigned to other consumers and establish a safe harbor for TCPA defendants in the event an error exists in the database.
In addition, the FCC would be tasked with making an annual report to Congress. After consultation with the Federal Trade Commission, the FCC would be required to share its progress in stopping robocalls and provide recommendations for how to reduce such calls by at least 50 percent year-over-year.
The measure also granted the FCC one year after enactment to prescribe consumer protections to require telephone service providers to authenticate the source of calls. After that time, calls that have not been authenticated should not be completed unless subscribers have chosen to unblock such calls. Providers would not be permitted to charge subscribers for this service.
“There is nothing more annoying than repeatedly getting unwanted calls from people you don’t know and don’t want to talk to,” Rep. Pallone said in a statement about the legislation. “Despite previous efforts like the Do Not Call Registry, robocalls are on the rise. The Stopping Bad Robocalls Act will better restrict unauthorized robocalls by providing consumer protection agencies with new tools designed to stop the abusive practices robocallers are employing.”
To read H.R. 6026, click here.
Why it matters: Referred to committee, the legislation would make a host of plaintiff-friendly changes to the TCPA, from broadening the scope of an ATDS to increasing the statute of limitations for certain violations of the statute to a generous standard for the revocation of consent.