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Seven Robocall-Related Bills Examined at the House Energy and Commerce Committee Hearing

The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.

Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below.

The following witnesses provided testimony at the hearing:

The Stopping Bad Robocalls Act (H.R. 946)

This bill was first introduced in the last Congress and was reintroduced in this session in February 2019 to “clarify the prohibitions on making robocalls.” As drafted, the bill would define a “called party” as the “current subscriber” of the called phone number, require voice service providers to implement caller ID authentication technology by a date specified by the FCC, and permit revocation of prior express consent “at any time and in any reasonable manner, regardless of the context in which consent was provided.” This bill also proposes expansion of the TCPA’s statute of limitation, which would allow the FCC four years (instead of the current two) to investigate and bring enforcement actions against TCPA-related violations. This expansion received support from all witnesses present at the hearing, representing healthcare industry, low-income consumers, broadband industry, and call-blocking technology industry. Since the bill was originally introduced in 2018, a portion of the bill that would require the FCC to implement a reassigned number database has already been adopted by the FCC in December 2018, which we previously discussed here.

Most notably, this bill would purge the phrase “automatic telephone dialing system” (“ATDS”) from the TCPA and instead define “robocalls” as:

“a call made (including a text message sent) – (A) 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 (B) using an artificial or prerecorded voice.”

The 2019 version of the bill would also require the FCC to clarify its rules as to the “descriptions of equipment and services” that are covered by TCPA calling restrictions.

The bill sponsor, Democratic Representative Frank Pallone, intended this new definition to “ensure the callers can’t use new technology to get around the longstanding consumer protection against robocalls.” This new definition received full support from NCLC witness Ms. Saunders/ Her written testimony stated that a statutory robocall definition would reconcile the current jurisdictional split on the interpretation of ATDS and would prevent the FCC from “mak[ing] the wrong decision on these interpretive questions” by narrowing the scope of TCPA prohibitions in light of the D.C. Circuit’s ACA International decision. (We have discussed the FCC’s post-ACA International review process a couple of times in the past, such as in this post.)

This proposed “robocall” definition would extend the TCPA’s calling prohibitions far beyond the FCC’s interpretation of ATDS in its 2015 Declaratory Ruling. During the hearing, Mr. Foss, the founder of call-blocking service Nomorobo, introduced the concept of “a spectrum of robocalls” – the most legitimate end being the necessary calls such as emergency alerts, financial fraud protection notifications, and healthcare reminders. These types of calls were estimated by witness Ms. Saunders to represent approximately 20% of all robocalls; to the most illegitimate being the fraudulent or even criminal telephone scams, caller ID spoofs and spams that cause tangible and substantial financial harm to recipients, which Ms. Saunders estimated to represent approximately 47% of all robocalls. In the middle of the spectrum, or the “grey area,” Ms. Saunders stated, are telemarketing and debt collection calls, calls that sometimes may be unwanted to certain consumers depending on the volume, frequency, and content of the call. Ms. Saunders estimated that this extremely nebulous category may represent approximately 30% of all “robocalls.”

As Ms. Saunders observed at the hearing, the prohibition against “robocalls” as defined in this bill would encompass robocalls in the “grey area” so as to render a large portion of “unwanted” calls as “illegal” calls. Chairman Doyle also seconded that lawmakers should not limit themselves to only narrow categories of illegal calls without also addressing the grey area. “For a lot of my constituents, they don’t appreciate or want some of these calls coming from debt collection agencies and others. So I think that needs to be addressed too,” he commented. These assertions overlook the necessity of differentiating important informational calls from unwanted telemarketing calls.

The Help Americans Never Get Unwanted Phone Calls (HANGUP) Act of 2019(H.R. 1421)

On the heels of the Fourth Circuit’s decision striking federal debt exemption to the TCPA prohibitions as unconstitutional, which we discussed last week, the HANGUP Act would be “just in time” to “fix the loophole” created by Congress in the Bipartisan Budget Act of 2015, stated the bill sponsor Democratic Representative Anna Eshoo.

This bill as drafted would repeal the portion of the Bipartisan Budget Act permitting automated calls to cell phones without prior consent if the calls are placed “solely to collect a debt owed to or guaranteed by the United States.” According to Rep. Eshoo, this 2015 amendment to the TCPA resulted in debt collectors freely employing abusive robocall tactics to target millions of students, veterans, and farmers. The bill would clarify that the definition of “person” subject to the TCPA “includes a contractor of the United States Government with respect to a call that is made solely to collect a debt owed to or guaranteed by the United States.”

The Repeated Objectionable Bothering of Consumers on Phones (ROBOCOP) Act (H.R. 2298)

As drafted, the ROBOCOP Act would require voice service providers to implement caller ID authentication technology and to block calls or text messages that originate either from verified caller or from an autodialer to a recipient who has not given prior consent. Both of these functionalities are to be provided free of charge to customers. Further, the bill would give the FCC authority to maintain a “whitelist” of callers that offer an “essential service” and establish a private right of action against voice service providers who fail to provide the required call blocking.

The discussion among Committee members and witnesses at the hearing highlighted a limitation of existing call-blocking technologies – they work only on IP based networks, applicable for smart phones or to calls transmitted through IP networks. Concern was expressed that these technologies will not benefit a large portion of senior consumers, landline consumers, or consumers located in rural areas where carriers have not updated telephone facilities. Additionally, existing call-authentication technologies such as SHAKEN/STIR generally require businesses to upgrade their front-end telecommunications or IT systems, which can be costly to implement. “Each dollar spent on preventing scam calls is a dollar away from care and research,” commented witness Mr. Summit on behalf of the healthcare industry.

The Support Tools to Obliterate Pesky (STOP) Robocalls Act (Discussion Draft)

Republican Representative Robert Latta released a discussion draft of this bill, not yet introduced to the House, to solicit comments on the feasibility of voice service providers utilizing robocall blocking technology to consumers on opt-out only basis. In response, Mr. Foss stated that existing call-blocking technology would allow voice service providers to get rid of telephone scams and spams completely while preserving the consumer’s option to receive these communications.

The discussion draft also proposes to require the FCC to issue rules specific to interconnected voice over internet protocol (VoIP) providers or one-way interconnected VoIP providers, requiring the FCC to streamline ways in which private entities share information relating to robocalling or spoofing with the FCC.

The unintended (yet highly foreseeable) consequences of blocking or mislabeling of legitimate calls in error remain an area of great concern. Several Committee members asked about what steps the communications industry is currently taking to remedy mislabeled calls or to minimize disruption of legitimate communications between business and customers. One practice that Republican Representative William Johnson found helpful involves carriers alerting called party of blocked calls so that the recipient would have an opportunity to call back. Mr. Halley and Mr. Foss, both speaking to voice service providers’ and analytics developers’ efforts, highlighted the need for industry-wide data sharing solution to refine call-blocking analytics and to avoid “the 50-subpoena” situation where a blocked business has to contact each carrier separately to protest erroneous blocking when and if discovered.

The Spam Calls Task Force Act of 2019 (H.R. 721)

Under this bill, the Attorney General, in consultation with the FCC, would convene an interagency working group to study several aspects related to TCPA enforcement, including budgetary constraints that inhibit TCPA enforcement, policies and programs facilitating interagency coordination, and international components affecting the effectiveness of TCPA enforcement.

From the plain text of the bill, it is not all clear what this process would add to the work that the FCC’s already has published (such as the Robocall Strike Force Report). However, this bill, along with the Committee members’ questions at the hearing, seems to suggest the Committee remains concerned that neither the FCC nor the FTC have exercised any available criminal enforcement authority under the TCPA.

Based on publically available data sources, including the FCC’s recently released report on illegal robocalls, which we noted previously, the FTC and the FCC have brought a total of approximately 150 civil enforcement actions in the last two years under the TCPA and have assessed over $300 million dollars in civil fines, redress, or monetary contributions. It is plain from statements from various FCC Commissioners, however, that many of these assessments are never paid.

Democratic Representative Diana Degette expressed deep concern at the two agencies’ recent enforcement efforts, questioning: “What have FTC and FCC done for the Do-Not-Call Registry?” This question led to comments that the statutory remedy for Do-Not-Call Registry violations is not comparable to other TCPA violations and renders the deterrence ineffective. “The best enforcement is private enforcement,” Ms. Saunders, who works with plaintiff lawyers, asserted.

The Regulatory Oversight Barring Obnoxious (ROBO) Calls and Texts Act (H.R. 2355)

As drafted, this bill would require the FCC to establish a Robocalls Division within the Enforcement Bureau that specifically addresses the issue of robocalls, including managing robocall consumer complaints and coordinating between the FCC and other agencies on TCPA-related enforcement activity. The bill would also grant the FCC the authority to promulgate rules requiring voice service providers to adopt specific technology and standards.

All witnesses present at the hearing cautioned the Committee about the vital importance of enacting technology-neutral legislation and allowing the industry to have reasonable flexibility in adjusting the technology it uses to combat robocallers, as illegal robocallers have demonstrated their ability to change and to adopt new tactics.

The Robocall Enforcement Enhancement Act of 2019 (H.R. 1575)

This bill would increase the statute of limitation for the FCC’s enforcement against illegal caller ID spoofing to three years, allow the FCC to impose a monetary forfeiture penalty against illegal robocallers without having to first issue a citation. It would also allow the FCC to impose a forfeiture for up to three years after issuing a notice of apparent liability.

It remains to be seen whether any of these bills move forward in their present form. What is plain is that pervasive scam calling and spoofing of Caller IDs has united the often politically fractious U.S. House of Representatives, who, broadly speaking, appear eager to stop getting complaints from their constituents about these calls.

©2019 Drinker Biddle & Reath LLP. All Rights Reserved

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About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney
Partner

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

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Qiusi Y. Newcom assists clients with navigating emerging issues and regulatory compliance in telecommunications laws and international trade laws. She is an associate with the Telecommunications Team and the Customs and International Trade Team.

Prior to joining Drinker Biddle, Qiusi was an associate with a boutique employment law firm where she handled labor and employment matters before federal courts and federal agencies, including the Equal Employment Opportunity Commission. Qiusi also gained valuable litigation experience through public interest work involving personal injury and criminal matters. During law school, Qiusi was a member of and published an article in the Federal Communications Law Journal. Qiusi is fluent in Mandarin Chinese.

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