As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling

Reflecting the nearly universal sense by constituents that call spoofing and other illegal forms of robocalls are annoying and unwelcome, on November 15, a bipartisan team of United States senators, Senators Markey, Thune and Wicker, introduced a bill titled the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” also known as the TRACED Act. The bill is designed to provide the FCC and other federal agencies acting in concert with the FCC with additional tools to combat spoofing and other illegal robocalling operations by amending Section 227 of the Communications Act to provide for enhanced civil penalties for violation of TCPA rules. Specifically, the bill would provide the FCC going forward with forfeiture authority to assess civil penalties of up to $10,000 per illegal robocall violation and extend the current FCC statute of limitations to investigate TCPA violations from the current one year to three years. The bill also creates new criminal fines of up to $10,000 per violation that can be trebled if the activity was intentional. The FCC would have 270 days following enactment to develop implementing regulations. The bill does not introduce any changes to the current private right of action provisions of Section 227 of the Act.

Senator Thune’s statement on the bill observes that “the TRACED Act targets robocall scams and other intentional violations of telemarketing laws so that when authorities do catch violators, they can be held accountable. . . . Existing civil penalty rules were designed to impose penalties on lawful telemarketers who make mistakes. This enforcement regime is totally inadequate for scam artists and we need to do more to separate enforcement of carelessness and other mistakes from more sinister actors.” Senator Markey also issued a statement focusing on the bill’s call authentication, call blocking and enforcement mechanisms designed to address the “scourge” of spoofed calls and to better verify that incoming calls are legitimate “before they reach consumers’ phones.”

The bill targets providers of voice service in requiring them to implement “appropriate and effective” call authentication frameworks for IP networks, directing the FCC to take action on regulations if voice service providers have failed to take voluntary implementation actions within 12 months of the bill’s enactment. The bill also would establish a “safe harbor” from liability for voice providers who may inadvertently block legitimate calls as part of any overall call blocking framework. The FCC also is directed to initiate a rulemaking to assist phone service subscribers from “receiving unwanted calls or text messages from a caller using an unauthenticated number.”

In the case of large numbers of scamming calls or spoofed calls originating from an enterprise, the bill outlines a process for the FCC to work with an interagency group and develop a “Memoranda of Understanding” or MoU process for agencies to share information to assist in the prevention and prosecution of these types of robocall violations. This interagency group and MoU could include state attorneys’ general. While it is always difficult to predict whether a bill will move towards legislation, the introduction of the bill does highlight the interest Congress, regardless of party, has in showing its constituents that something meaningful is being done to block illegal calls, including the potential imposition of more robust civil penalties, and recognition of a federal criminal TCPA activity.