It Just Got Real: TRACED Act Barrels Across The Senate Goal Line

The US Senate today approved the TRACED Act, S. 151, as reported by the Senate Committee on Commerce, Science and Transportation, by a vote of 97-1. Only Senator Rand Paul (R-KY) voted against the bill. Senate floor action came after the Commerce Committee filed its report on the bill, S. Rep. No 116-41. As previously noted, the TRACED Act would increase potential fines for illegal robocalls, extend the statute of limitations for prosecuting violators of the TCPA, and require the implementation of the SHAKEN/STIR call authentication framework by voice service providers.

It also–and most critically–creates a working group including most every federal agency with an enforcement arm designed to enhance regulatory enforcement of the TCPA. This creates a clear and present danger that regulators will become more involved enforcing the statute in the near term.

Federal Communications Commission (FCC) Chairman Pai promptly publicly commended the Senate’s action, commenting that the Act would “help strengthen the FCC’s ability to combat illegal robocalls.” He welcomed “[f]urther powers like increased fines, longer statutes of limitations, and removing citation requirements which obligate us to warn some robocallers before penalizing them….” Commissioner Brendan Carr also voiced his approval.

The TRACED Act now goes to the House of Representatives, where a companion bill, H.R. 2015, is among those pending before the House Energy and Commerce Committee. At this point, it has 31 supporters, with Republicans decidedly outnumbering Democrats.

Reported reaction to Senate passage of S. 151 on the other side of the Capitol was that the broader approach embodied in House Energy and Commerce Committee Chairman Frank Pallone’s (D-NJ) Stopping Bad Robocalls Act, H.R. 946 was more favored by the Democrats. A House Energy and Commerce Committee spokesperson reportedly noted that the Committee planned to hold a markup soon on the legislation it was considering to “protect consumers from illegal and unwanted robocalls.” These efforts would include “working out any differences between the bills and getting legislation signed in to law.”

In view of the vote margin in the Senate and the bi-partisan clamoring in the House for solutions, anti-robocall legislation seems almost inevitable this year. How close the ultimate contents will be to the just-passed TRACED Act remains open for considerable ongoing debate and discussion. But as the House Energy and Commerce Committee Ranking Member Greg Walden (R-OR) reportedly recently commented – “there is a deal to be had here.” Stay tuned.

Pai To State AGs: Unwanted Robocalls Require Comprehensive Response

In addressing the National Association of Attorneys General (AG) on Monday in Washington, Federal Communications Commission (FCC) Chairman Ajit Pai first warned attendees to turn off their cellphones for fear of receiving a robocall while he spoke. Then the Chairman sounded a further clarion call for collaborative efforts to combat illegal robocalls, noting that “[s]cammers are…often ahead of the curve technically,” making the effort to thwart them “a complex challenge that will require a comprehensive response.”

Reminding the AGs that “combatting unwanted robocalls” is the FCC’s “top consumer protection priority,” the FCC Chair catalogued the various Commission actions taken consistent with that objective: (a) “authorized carriers to block robocalls from certain spoofed numbers,”(b) commenced “creation of a reassigned numbers database,” (c) demanded that phone carriers “establish a robust call-authentication framework,” (d) “taken aggressive enforcement action,” and (e) working with Congress “to pass much- needed bipartisan, anti-robocall legislation, like the TRACED Act….” (Now at 85 sponsors and counting in the Senate.)

Lastly, he outlined his proposal “to allow phone companies to establish call-blocking services as a default setting for consumers.” No need for a consumer to sign up. Companies adopting this approach would use “analytics to determine which calls to block….” However, the companies would have to give consumers an opt-out option if they did not want these services. Finally, carriers would be allowed to offer consumers “the option of using their own contact list as a ‘white list’” and block all calls that come from folks not on that list.

Before concluding, the Chairman did add that the “proposals make very clear that emergency and other vital calls cannot be blocked…” Exactly what will be on that Critical Calls List would be debated in the Third Notice Of Proposed Rulemaking component of the proposals. For starters, such lists “would include at least the outbound numbers of 911 call centers (i.e., PSAPs) and government emergency outbound numbers…” whose numbers are authenticated.

But what about “other calls…important to consumers?”, such as “calls from schools, doctors, local governments,… alarm companies, …fraud and weather alerts,…calls from recall centers, hospitals, and flight alerts.” The proposal asks, “[s]hould we expand the scope of the Critical Calls List to include any or all of these categories (or any others)” and should the List’s protections be limited “to only those calls from which the Caller ID is authenticated?”

Assuming the Commission adopts the proposal on June 6, there is your invitation to weigh in on what are calls that “consumers value” that should be subject to “protections for critical calls.” Do not miss the chance.

Washington Update: TCPA Week In the Capital

Federal Communications Commission (FCC) “summit” announcements, a Congressional oversight hearing with all FCC Commissioners, proposals for default call-blocking services, yet more sponsors for the Senate’s TRACED Act, and a forceful  speech by Commissioner Michael O’Rielly calling for a “focus on real solutions, not maintaining overbroad regulations….” Where to begin?

On Monday, in keeping with the pledge that combatting illegal robocalls were his highest consumer priority, Chairman Pai announced that there would be a “summit” on July 11, to examine major phone company progress towards implementing SHAKEN/STIR caller ID authentication standards by years end. The Chairman plans to welcome “voice service providers and other technology stakeholders” to the Commission to discuss, among other things, “lessons learned” to date and “technical barriers, if any to deployment….” Enjoy Washington in July? The summit is open to the public.

The Chairman’s summit proclamation was followed Wednesday with news that he had circulated a proposed Declaratory Ruling – to be considered at the June 6 FCC meeting – that would, if adopted, allow “phone companies to block unwanted calls to their customers by default.” In addition, companies could allow consumers to block calls that are not on their own contact list. A second component of the proposal is a Further Notice of Proposed Rulemaking providing a safe harbor for “providers that implement network-wide blocking of calls that fail caller authentication under the SHAKEN/STIR framework once it is implemented.”

The news of this initiative came as all five Commissioners appeared before an oversight hearing by the House Energy and Commerce Committee’s Subcommittee on Communications and Technology. While there were many topics on the agenda, the subject of illegal robocalls was on the tip of the tongues of a number of members. You can watch for yourself here.  And while we are at it, Subcommittee Chairman Michael Doyle (D-PA) is working on a composite robocall bill as a follow up to the recent legislative hearing. He hopes to have it assembled before the August recess. Of course, no “legislative report” would be complete without an update on the TRACED Act, S. 151 – it has hit eighty sponsors in the Senate.

Finally, addressing the ACA International Washington Insights Conference today, Commissioner Michael O’Rielly noted that the “‘fog of uncertainty’” in the aftermath of last year’s ACA International decision remains “thicker than ever.” He put the onus on those affected “to raise awareness of the need for corrective actions [for example, to the definition of an ATDS] to a much, much greater extent” with his colleagues and agency staff. So there.

All this and it is only Thursday in TCPAWorld.