October 21, 2019

October 21, 2019

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House Energy and Commerce Committee to Consider New Version of the “Stopping Bad Robocalls Act”

The Houuse Energy and Commerce Committee is poised to consider a revised version of Chairman Pallone’s (D-NJ) “Stopping Bad Robocalls Act.” The revised bill was introduced this morning and consideration of the legislation by the Communications & Technology Subcommittee could come as early as next week. 

The Stopping Bad Robocalls Act was first introduced in 2018 and then reintroduced on February 4, 2019 after Representative Pallone became Chair of the Committee.  The revised version of the bill makes several material changes from to the earlier versions of the bill and comes on the heels of the FCC’s decision to allow telephone companies to implement “call blocking by default” services in which consumers may automatically have calls blocked that the telephone companies deem to be unlawful robocalls.

Apparently, the new rules adopted by the FCC earlier this month are not enough to appease  Chairman Pallone, who released a statement shortly after the FCC’s vote saying:

I’m glad the FCC took action to allow more blocking of robocalls, but I’m disappointed the Commission’s ruling doesn’t ensure consumers don’t foot the bill for stopping these calls.  Consumers should not have to pay one cent more of their hard-earned money to get rid of these illegal and unwanted calls.  The Committee will markup consumer-focused legislation soon to stop the robocall epidemic.

The changes made in the latest version of the Stopping Bad Robocalls Act introduced by Chairman Pallone today are material.  They include:

  1. Instead of Congress intervening to resolve the continuing debate about the proper definition of an automatic telephone dialing system (ATDS) by defining a robocall as being a call made 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,” the revised bill would require the FCC to “prescribe such regulations, or amend such existing regulations, as necessary to clarify” the definition of ATDS within six months.

  2. Instead of declaring that “prior express consent may be revoked at any time and in any reasonable manner,” the revised bill directs the FCC to adopt regulations that “in the judgment of the Commission, ensure that” “consumers can withdraw consent for” calls and text messages sent using an automatic telephone dialing system or using an artificial or prerecorded voice.

  3. Instead of codifying the creation of a reassigned number database, in light of the FCC’s decision to implement the database and a safe harbor without awaiting Congressional action, the revised bill would direct the FCC to provide Congress a report regarding the implementation of the database within one year of the bill becoming law.

  4. Instead of defining “called party” to mean only the “the current subscriber of the telephone number to which the call is made,” the revised bill defines the term to mean either “the current subscriber or the customary user of the telephone number to which the call is made,” apparently to take into consideration the use of shared phones and family plans.

  5. Instead of requiring the FCC to implement rules that require voice carriers to provide call authentication technology “by a date specified by the Commission,” the revised bill would mandate that this technology to be implemented by most voice carriers “within six months” of the Commission adopting new rules in its on-going rulemaking proceeding wherein it is considering implementation of a framework known as SHAKEN/STIR.

  6. Requires the Commission to follow up on its recent decision to allow carriers to opt consumers into “call blocking by default” services by ensuring that these services are provided with “transparency” and a no-cost means to of “redress” for callers who are erroneously blocked.

Like the previous version of the legislation, the modified Stopping Bad Robocalls Act would continue to:

  1. Require the FCC to ensure that all exemptions to the TCPA adopted by the Commission specify “the classes of parties” that may rely on the exemption and which “classes of parties” may be called using the exemption, as well as a limitation on the number of calls that can be made using the exemption.

  2. Strengthen the FCC’s enforcement powers by allowing it to impose monetary penalties on violators of the TCPA and the Truth in Caller ID Act without first providing the violator with a prior written citation.

  3. Extend the Commission’s ability to impose forfeiture penalties for robocall and caller ID violations to four years.

  4. Require an annual report to Congress summarizing the complaints received from consumers and the Commission’s enforcement activities related to robocalls and caller ID spoofing.

For industry participants, the most significant modification in the revised bill is the change to allow the FCC to continue to exercise discretion in deciding what equipment constitutes an ATDS, rather than imposing a broad statutory definition.  Therefore, if adopted, the Stopping Bad Robocalls Act leaves open the possibility that the FCC could adopt a more limited definition of the term, similar to the one some courts have adopted, which requires an ATDS to have the capacity to randomly or sequentially generate numbers, rather than just the capacity to dial a discrete list of numbers provided by the caller.  This change may help garner more bipartisan support for the bill and offers at least one ray of hope for businesses that continue to confront a steady stream of TCPA litigation. 

We will continue to monitor developments on the Stopping Bad Robocalls Act as well as the TRACED Act, which was approved with near-unanimous support in the Senate in May.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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Companies rely on David Carter to guide them in Telephone Consumer Protection Act (TCPA) compliance matters and to defend them against allegations of TCPA violations. He has represented both closely held and publicly traded companies facing TCPA claims with potential liability in excess of $500 million. David runs the TCPA Defense Force whose mission is to reduce TCPA risk, allowing companies to communicate with consumers responsibly and without fear of legal consequences.

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