Dorsey’s team brings you an update on recently proposed legislation regarding “robocalls.” The proposed bills appear to be part of a concerted response on Capitol Hill to the D.C. Circuit’s recent ruling in ACA Int’l. v. FCC et al., 885 F.3d 687 (D.C. Cir. 2018).
House and Senate see Introduction of The “Stopping Bad Robocalls Act”
On June 7, 2018, companion bills were introduced in the House and Senate aimed at curbing so-called abusive “robocall” practices. The Senate bill – entitled the “Stopping Bad Robocalls Act” – is the brainchild of Senator Edward J. Markey (D-Mass.), the author of the 1991 Telephone Consumer Protection Act (TCPA) himself. Similar legislation (H.R. 6026) was introduced by Frank Pallone, Jr. (D-N.J.) in the House.
“Whether at home or on their mobile phones, consumers should not be subject to intrusive and unsolicited calls,” Senator Markey’s office stated in a press release, adding that the legislation would “clarify[] the FCC’s obligation to strengthen the precious zone of privacy and control that has protected consumers from unwanted calls and texts for decades.”
Notwithstanding Senator Markey’s stated objectives, the Act would significantly increase compliance costs for private companies, as it seeks to enact a sweeping set of new requirements, which include: 1) amending the TCPA to expand the definition of an automated telephone dialing system (ATDS) so as include predictive dialers (equipment that makes calls using numbers stored on a list), in addition to random or sequential number generators ; 2) providing that consumers may revoke previously-granted consent at any time in any reasonable manner; 3) limiting the types of “robocalls” that the FCC may exempt via regulation under the TCPA; 4) mandating that a call have verified caller-ID before the call can be placed; and 5) creating a new “reassigned number database” to which all telephone providers would be required to report any numbers that have been reassigned to other parties.
The press release claims that over 18 billion “unwanted calls” were placed to consumers in the United States in 2017 – a 76% increase from 2016.
In addition to the considerable compliance issues it poses, the bill is inherently problematic in terms of how it would impact non-solicitation, informational calls to consumers. By its very terms, it is difficult to imagine how exactly the Act would distinguish a “bad robocall” from a valid communication to a consumer, since many legitimate service providers use predictive dialers to contact their consumers.
Schumer Pushes ROBOCOP Act
On May 16, 2018, Senate Minority Leader Charles E. Schumer’s (D–N.Y.) office issued a press release indicating that the Senator would vigorously support the proposed “Repeated Objectionable Bothering of Consumers on Phones” (ROBOCOP) Act, which was introduced in the Senate by Sen. Richard Blementhal (D-Conn.) on April 18, 2018 (S. 2705) (previously discussed here).
“Robocalls are one of the things that annoy Americans the most, and the ROBOCOP Act will finally help put a rest to these dreaded calls that are flooding our cellphones, interrupting family dinners or even scamming people out their hard-earned money,” the press release stated, terming robocalls an “epidemic” that telecom companies are doing little to combat.
Schumer – one of the chief architects of the national “Do Not Call” registry – cited statistics indicating that in April 2018, Americans were subjected to upwards of 3.4 billion “robocalls or other unwanted spam calls.” These statistics were apparently compiled by YouMail, a private calling services vendor that seeks to fight robocalls, and particularly the practice of “spoofing” – whereby the true source of a call is concealed so as to appear that the call originates from a local entity, such as a local business or neighbor.
The Senator stated that a number of companies have instituted mechanisms which allow consumers to block robocalls by essentially directing such communications to what he claimed was the functional equivalent of an email “spam filter.” As an example, the Senator cited the “Nomorobo” technology offered by Time Warner Cable Inc., which is supposedly a third-party robocall-blocking service for those with Internet-based service or Voice-over Internet Protocol (VoIP). Schumer claimed that the ROBOCOP Act will ensure that all telecom companies provide a similar service at no cost to consumers.
On a practical level, it is unclear how telecom firms can implement similar “spam filter” technologies across the board (especially on government mandate) in a manner that is both efficient and cost-effective for consumers.
Moreover, if one of the goals of the legislation is to conserve the vast amount of judicial and administrative resources that are currently tied up by TCPA-related litigation (as it arguably should be from a big-picture perspective), it does not appear that the ROBOCOP Act would have much appreciable impact. Based on the current application of the TCPA, entities would arguably still face liability for calls that are placed but blocked by applications such as Nomorobo. Indeed, in our experience, “call-blocking” applications very similar to Nomorobo have been used to actually support call counts alleged by TCPA litigants. Accordingly, unless courts start more rigorously applying the Supreme Court’s logic in Spokeo (e.g., a showing of concrete harm should be required to establish standing), the ROBOCOP legislation is of little aid to defendants and could provide a potent additional tool (“call blocking” apps that can be used to tally and support call counts) to the plaintiff’s bar arsenal.
State Law Developments
Meanwhile, South Carolina recently adopted the “Telephone Privacy Protection Act.” The new law parallels many provisions of the TCPA and restricts telephone solicitations that target residential or mobile phone numbers with South Carolina area codes. The Act prohibits solicitation calls or text messages before 8 a.m. or after 9 p.m. local time, and from calling persons listed on the National Do Not Call Registry. The law vests state officials with broad authority to pursue administrative and judicial enforcement actions, including the imposition of penalties of up to $5,000 per violation (in contrast to the TCPA’s limit of $1,500). The law also specifically prohibits spoofing, making it illegal for telephone solicitors to display a local area code (with the requisite intent to defraud, harass or wrongfully obtain anything of value from the called party) if the person making the call does not maintain a physical presence in South Carolina. The Act was signed into law by Governor Henry McMaster on May 18, 2018.
New York is also considering a similar law. On May 7, 2018, New York State Senator Brad Hoylman announced that he would introduce legislation which would affirmatively require callers to obtain consumer consent before making any non-emergency autodialed call to a cell phone or a landline. The legislation would include a private right of action for consumers who receive calls in violation of the proposed law. Like the bills pending at the federal level, the law would entail a significant increase in compliance costs – requiring telecom companies to provide callers with free “call blocking” technology, and would also enable consumers to revoke their consent by any “reasonable” means.
Similar legislation may be brewing in other jurisdictions which appear to be the target of widespread “spoofing” activity. According to one recent article, consumers in several states – including California, Massachusetts and Texas – have reported a surge in such calls emanating from overseas, often from China.
As legislatures get in on the robocall action in the wake of ACA International, one can only wonder, what will become of the FCC’s response.
