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Timing is Everything: Here is the Timetable for the Big SCOTUS TCPA Review and the TRACED Act Roll Out

The bi-partisan TRACED Act became law last year December 30, 2019, in a pre-SCOTUS’ TCPA review world.  The TRACED Act makes various changes to the TCPA is primarily to enhance enforcement and mandate call authentication; for example it increases fines and extends the time for enforcers to pursue violators.  Now we are living in a world post-SCOTUS accepting review of the TCPA. 

The authors of “The Best For Last: The Timing of U.S. Supreme Court Decisions” 64 Duke L.J. 991, 993, concluded (based on a sample size of 7219 cases decided between 1946 and 2012) that SCOTUS usually issues its decision within three months of oral argument, and in 99% of cases they are decided in the same term they accept to hear the case.  Therefore, it is not unreasonable to expect that oral argument on the TCPA’s constitutionality could be held in a few months, with a decision issued by the end of June 2020, before the Court take its summer recess at the end of this term.

This means that 20% of the multi-faceted milestones noted below for the TRACED ACT will manifest before the fate of the very statute it seeks to enhance is determined.  As TCPAWorld has predicted, the TCPA as we know is a goner, at least in many respects; the question is which part(s) will survive.  The TRACED Act amendments to the TCPA may have a higher chance of remaining unscathed, but only time will tell for sure.

Below are the key deadlines imposed primarily on the FCC for implementing various components of the TRACED Act.

March 29, 2020

  • The FCC “shall issue rules to establish a registration process for the registration of a single consortium that conducts private-led efforts to trace back the origin of suspected unlawful robocalls.”  This “Registered Consortium” is also responsible for upholding best practices regarding voice service providers’ participation in such efforts.

April 28, 2020

  • The FCC must issue a “notice to the public seeking the registration” for the private consortium, and annually thereafter. 

  • The FCC must initiate a proceeding to “protect called parties from one-ring scams.”  According to the FTC, (https://www.consumer.ftc.gov/blog/2019/05/get-one-ring-call-dont-call-back ) “That’s when you get a phone call from a number you don’t know, and the call stops after just one ring. The scammer is hoping you’ll call back, because it’s really an international toll number and will appear as a charge on your phone bill — with most of the money going to the scammer.”  As part of the proceeding, the FCC must consider how it can (a) work with law enforcement agencies and foreign governments to address such scams, (b) in consultation with the FTC, better educate consumers, (c) incentivize voice service providers to stop them (d) work with entities that provide call-blocking services to address such scams, and (e) establish “obligations on international gateway providers that are the first point of entry for these calls into the” US.

June 27, 2020

  • The FCC must commence a proceeding to “determine how Commission policies regarding access to number resources, could be modified…to help reduce access to numbers by potential perpetrators of the TCPA. If the FCC determines modifications could help in this regard, it is required to prescribe regulations to implement the modifications.

  • The FCC must establish an advisory committee called the Hospital Robocall Protection Group.  And it must establish “best practices” as to how voice service providers can better combat unlawful robocalls made to hospitals, how they can better protect themselves from such calls and how the Federal and State governments can help combat such calls.

July 27, 2020

Via Public Notice, annually on July 27, the FCC must obtain information from the private registered consortium and voice service providers on the private-led efforts to trace suspected unlawful robocalls origins and recommendations in its enforcement efforts.  

September 25, 2020

  • The FCC must prescribe and adopt implementing regulations for the TRACED Act.

  • This group must submit to Congressional Committees a report on the findings of the study, including “any recommendations regarding the prevention and prosecution” of violations and what progress, if any, relevant Federal departments have made “implementing the recommendations.”

December 29, 2020

  • The FCC must submit a report to Congress, annually, re its enforcement of the TCPA.

  • A provider has until December 29, 2020, prior to the FCC being able to take action to show the provider has met certain steps with respect to adopting STIR/SHAKEN in its IP-networks and “reasonable measures” in its non-IP networks, including determining that the provider will be capable of fully implementing STIR/SHAKEN in IP-networks and fully implementing an effective call authentication frame work in non-IP networks by June 30, 2021

  • The FCC must report to the House Energy and Commerce and Senate Commerce Committees (“the Committees”) on implementation of the call authentication frameworks and assess the “efficacy of” such frameworks in “addressing all aspects of call authentication.”

  • The FCC must assess “any burdens or barriers” to implementation, including for certain voice providers, small providers of voice services, and issues relating to equipment availability. The FCC can delay compliance with the 18-month implementation deadline for a “reasonable period of time” for providers needing to address the “identified burdens and barriers” based on a “public finding of undue hardship.”

  • The FCC must issue “best practices” that voice service providers may use in implementing effective call authentication frameworks to take steps to “ensure the calling party is accurately identified.”

  • The FCC must promulgate rules establishing, among other things, “a safe harbor” for voice service providers “from liability for unintended or inadvertent blocking of calls or for unintended or inadvertent misidentification of the level of trust for individual calls based, in whole or in part, on information provided by the call authentication frameworks.”

  • The FCC must initiate rules “help protect a subscriber from receiving unwanted calls or text messages from a caller using an unauthenticated number.” The FCC must consider a number of issues in the rulemaking, including the “best means of ensuring that a subscriber or provider has the ability to block calls from a caller using an unauthenticated North American Numbering Plan number” and the “impact on the privacy of a subscriber from unauthenticated calls.”

  • The FCC must submit to Congress, and make publicly available on its website, a report on the status of its efforts pursuant to its December 12, 2018 Report and Order to implement a reassigned number database.

  • The FCC must ensure the robocall blocking services provided on an opt-out or opt-in basis pursuant to its 6/18 Declaratory Ruling are provided with 1) effective redress options for consumers and callers and without additional line item charges for consumers and no additional charges to callers for resolving complaints related to erroneously blocked calls and 2) reasonable efforts to avoid blocking emergency public safety calls.

  • The FCC shall publish on its website and submit to Congressional Committees a report that provides the number of instances that suggests a willful, knowing and repeated robocall violation with an intent to defraud, or cause harm and summary of types of robocall violations to which such evidence relates.

  • The FCC must publish on its website and file with the Congressional Committees a report on the status of the one-ring scam proceeding.

  • The FCC must annually make publicly available on its website and file with the Committees, a report on the status of private-led efforts to trace back the origin of suspected unlawful robocalls by the registered consortium and the participation of voice service providers in such efforts.

June 30, 2021

  • The FCC shall require a voice service provider to implement STIR/SHAKEN in the IP-networks of the provider and require the provider to take reasonable measures to implement an effective call authentication framework in the provider’s non-IP networks.

  • The FCC must prescribe regulations to establish a process that streamlines the ways in which a private entity may voluntarily share with the Commission information relating to: (a) a call or text message sent in violation of Section 227(b) and (b) a call or text message with spoofed caller ID information in violation of Section 227(c).

  • The FCC must report to Congress on the results of a study as to whether to require a provider of covered Voice over IP (“VoIP”) service to provide and maintain current contact information with the FCC and retain records relating to each call transmitted over the service that are sufficient to trace such call back to the source of the call.

December 30 2022

  • The FCC, after public notice and an opportunity for comment, must assess the efficacy of the call authentication frameworks, revise or replace them, if determined to be in the public interest, and submit a report to the Committees on the findings of the assessment and revision or replacement actions.  And must revisit this every three years thereafter.

The question remains whether or how any SCOTUS decision will impact an Act that passed both Houses of Congress by wide majorities with a handful of dissenting votes. 

© Copyright 2020 Squire Patton Boggs (US) LLP

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About this Author

Associate

Jason M. Ingber’s practice focuses on consumer class action defense and breach of contract litigation. Jason specializes in cases brought under the Telephone Consumer Protection Act and has handled all phases of litigation in cases involving consumer protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act and the California Homeowner Bill of Rights.

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