TCPA Regulatory Update — FCC Busy Implementing TRACED Act through Series of Anti-Robocall Releases
Over the past month, the FCC took a number of small but notable steps to arm voice service providers and consumers in the fight against illegal and unwanted robocalls. Many of those steps come as part of the FCC’s efforts to implement the TRACED Act, which was signed into law on December 30, 2019 and requires the FCC to take several actions.
Traceback Consortium Registration
Among other things, under the TRACED Act, the FCC was required to issue rules establishing a process for the registration of a single consortium that will conduct private sector-led efforts to “trace back” the origin of suspected unlawful robocalls — a process by which government and industry will work together to trace unlawful spoofed robocalls to their origination in order to identify and stop illegal robocalls. On April 20, the Enforcement Bureau released a Public Notice soliciting Letters of Intent from parties interested in being the officially designated traceback consortium. Interested parties must submit their Letters of Intent by May 21, and then stakeholders will have the opportunity to comment on those letters until June 5.
On April 28, 2020, the FCC released and adopted a Notice of Proposed Rulemaking proposing rules, as required by the TRACED Act, to combat one-ring scam calls. The TRACED Act defines “one-ring scam” as “a scam in which a caller makes a call and allows the call to ring the called party for a short duration, in order to prompt the called party to return the call, thereby subjecting the called party to charges.” The scammer hopes consumers will call the number back, resulting in high international tolls, which are largely paid to the scammer. Because these scams rely on an international toll, they generally come from international numbers, though some may be spoofed to look like U.S. numbers.
The FCC sought comment on how it should implement this TRACED Act requirement, including whether it should allow voice service providers to block voice calls when those calls purport to originate from a number that is highly likely to be associated with a one-ring scam. It also considered adopting a safe harbor for the good faith blocking of numbers associated with one-ring scam calls. The FCC sought comment on working with foreign governments to stop one-ring scams, consumer education in coordination with the FTC, incentivizing voice service providers to stop such scams, establishing obligations on international gateway providers, and other issues that would help stop one-ring scams. Comment and reply deadlines will be set by publication in the Federal Register, which has not yet occurred.
Carrying out another TRACED Act mandate, the Enforcement Bureau released an Order on May 1, 2020 implementing section 3 of the TRACED Act, which made several changes to the TCPA to strengthen the FCC’s ability to fight unwanted and illegal robocalls. Notably, one of the changes eliminates the requirement that the FCC must first issue a warning or citation to robocallers that do not otherwise fall within its jurisdiction before it may proceed with an enforcement action. In implementing section 3, the FCC moved straight to an Order (without notice and comment rulemaking) because implementation of section 3 involved no administrative discretion. Specifically, the FCC made the following changes to its rules:
Removed the requirement for the FCC to issue a citation or warning before it can impose monetary forfeiture under section 227(b) of the TCPA, which restricts the use of automated dialing equipment;
Prescribed an additional potential monetary penalty of up to $10,000 per intentional unlawful robocall for violations of section 227(b) if the Commission determines that the person violated section 227(b) “with the intent to cause such violation;”
Set a four-year statute of limitations period (raised from one year previously) in which it may take enforcement action against intentional violations of section 227(b); and
Set a four-year statute of limitations period (raised from two years previously) in which it may take enforcement action against violations of section 227(e), the Truth in Caller ID Act prohibition on misleading or inaccurate caller ID information.
Reassigned Numbers Database
Although establishing a Reassigned Numbers Database (“RND”) is not mandated in the TRACED Act because the FCC had already taken significant steps to establish such a database before the TRACED Act was signed into law, the Act does require the FCC to submit to Congress a report on its progress in establishing the RND. The RND will allow a caller to check whether a telephone number has been reassigned from the consumer they intend to reach, thus allowing them to avoid calling consumers with reassigned numbers who may not wish to receive the call.
On April 16, the Consumer and Governmental Affairs Bureau released a Public Notice establishing guidelines for the operation of the RND. It had previously issued Public Notices on January 24 and February 26 soliciting comments on two documents prepared by the North American Numbering Council, the Technical Requirements Document and the Cost Fee Structure Recommendation. The April Public Notice addressed key definitions and the disposition of excess funds based on comments received in response to the two earlier Public Notices.
The Public Notice explained that the RND will answer “yes” if a number has been permanently disconnected, and callers will not be eligible for a safe harbor for calling a number for which the RND returned a “yes.” A “no” will mean that the number has not been permanently disconnected after the date the caller enters in its query, and callers will be eligible for the safe harbor for calling a number for which the RND returned a “no,” should it turn out that the RND made an error. A “no data” response will not allow callers to avail themselves of the safe harbor.
COVID-19 Exception for Financial Institutions
Finally, comments were due on May 6 on the Petition for Expedited Declaratory Ruling, Clarification or Waiver filed by the American Bankers Association and numerous other financial associations seeking a ruling that texts placed by banks, credit unions, and other customer-facing financial service providers using an automatic telephone dialing system or prerecorded or artificial voice on matters relating to the COVID-19 pandemic fall under the TCPA’s emergency purposes exception. We reported on the Petition last month. Most commenters urged the FCC to issue an interim declaratory ruling on the Petition during the pendency of the comment cycle granting the necessary clarification. They argued that, in the absence of a clarification, financial institutions are constrained in their ability to communicate time-sensitive messages that are designed to protect the financial health and safety of customers. Reply comments are due May 21.