Hold on to your hats. The TRACED Act (S. 151), which encourages the FCC and other federal agencies to increase enforcement of the TCPA, is gaining serious bipartisan support. We’re heading into dangerous territory.
Reintroduced in January by Senators Ed Markey (D-Mass.) and John Thune (R-S.D.), the TRACED Act is billed as legislation that will finally “stop the scourge of robocalls” that impact millions of Americans each year. Last Friday, ten additional co-sponsors signed onto the bill: Senators Dick Durbin (D-Ill.), Richard Blumenthal (D-Conn.), Shelley Moore Capito (R-W.Va.), Tammy Duckworth (D-Ill.), Cory Gardner (R-Colo.), John Hoeven (R-N.D.), Amy Klobuchar (D-Minn.), Jerry Moran (R-Kan.), Marco Rubio (R-Fla.), and Sheldon Whitehouse (D-R.I.). 54 state and territory attorneys general—from California to Mississippi— all commissioners of the FCC and FTC, along with industry and consumer groups have also thrown their support behind the bill.
Significantly, TRACED would mandate the DOJ and FCC to convene an interagency working group with the CFPB, Department of State, Department of Homeland Security, Department of Commerce and the FTC to consider, among other things, “whether, and if so, how, any Federal laws, including regulations, policies and practices, or budgetary or jurisdictional constrains inhibit the prosecution of [TCPA] violations.” The bill also encourages the group to consult with non-Federal stakeholders with “relevant expertise, including the National Association of Attorneys General.” And the National Association of Attorneys General is eager to join the party. In short, Congress is encouraging the FCC and other federal agencies to broaden the TCPA and step up enforcement.
Why is expansion of the TCPA bad? Because the TCPA’s private right of action allows private lawyers to sue for $500.00 per violation alongside the FCC. Thus, broadening the TCPA with the hope that the FCC will have greater capacity to crack down on calls from true bad actors simultaneously creates more opportunity for consumer lawyers who use the statute against legitimate businesses to extract multimillion-dollar settlements. We’ve already lived through the FCC’s drastic expansion of the TCPA with its 2015 Omnibus Ruling—where the FCC gave itself the power to regulate all calls made by any software-enabled dialing device, including smart phones—which was only recently curtailed by ACA Int’l. What followed was a multiplicity of frivolous lawsuits while true scam robocalls continued to run rampant. So why double down on expansion, especially at a time where the scope the TCPA remains uncertain following ACA Int’l and Marks? Encouraging federal agencies to step up enforcement of the TCPA without a clear definition of robocalls causes dire First Amendment concerns and will only serve to place pressure on the FCC to broaden, rather than narrow, the statute as part of its pending public notice proceeding.
TRACED also adds a forfeiture penalty for “[a]ny person that is determined by the Commission . . . to have violated this subsection with the intent to cause such violation shall be liable to the United States for a forfeiture penalty. The amount of the forfeiture penalty determined under this subparagraph shall be equal to an amount determined in accordance with subparagraphs (A) through (F) of section 503(b)(2) plus an additional penalty not to exceed $10,000.”
While encouraging expansion of the TCPA is not what’s needed, there are some positives here. First, TRACED would require carriers to track and authenticate calls. Unlike the last iteration, this time around the bill specifies the authentication framework to be adopted by carriers. Specifically, TRACED mandates that the FCC “require a provider of voice service to implement the STIR/SHAKEN authentication framework in internet protocol networks of voice service providers.” While call authentication is an important first step in combating scammers, unintended consequences are likely to flow. In recognition of that likelihood, Congress is directing the FCC to implement a safe-harbor shielding carriers “from liability for unintended or inadvertent blocking of calls or for the 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 framework . . .”
Congress also appears to be accounting for the fact that technology employed by scammers to pummel consumers with calls will inevitably outpace enforcement efforts. Thus, TRACED would also require the FCC to provide Congress with an assessment of the efficacy of STIR/SHAKEN within a year of enactment. It would also require the FCC to reevaluate the efficacy of STIR/SHAKEN every three years, and would give it leeway to mandate replacement of STIR/SHAKEN if the FCC “determines it is in the public interest to do so . . .”
Second, TRACED would require the FCC to adopt regulations to protect consumers from receiving calls or texts from unauthenticated numbers. This is also a potentially promising direction; however, the legislation is thin on details at this point.
All in all, while TRACED would bolster the FCC’s ability to combat call spoofing, its encouragement of TCPA expansion and enforcement proceedings in an area already mired with litigation is misguided.
We’re following this one closely. As always, we have you covered.
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