Regulatory Updates: FCC to Vote on “Robocall” Measures to Mitigate Erroneous Blocking and to Advance Reassigned Numbers Database Rules to the Next Step

The FCC recently reported a decrease of approximately 60% of consumer robocall complaints and a drop of approximately 30% in volume of “unwanted robocalls” that were placed in the first half of 2020 as compared to the first half of 2019. Considering that the FCC adopted the first-of-its-kind “call blocking by default” framework in June 2019, some might wonder: Does this mean the FCC’s “call blocking by default” framework has been successful?

While the FCC cited to voice service providers reporting that they have so far only discovered less than 1% of – or as few as 0.2% of – blocked calls to be false positives, the seemingly low percentage still means that millions of lawful and wanted calls have been erroneously blocked. For example, Hiya reported that it has blocked nearly 800 million calls in 2019, which could mean that 0.2% of which – 1.6 million calls – had been blocked in error in that year. Likewise, Nomorobo blocked over 512 million robocalls in 2019; its blocking platform may have affected the delivery of 1.024 million lawful calls in that year.

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Draft Reassigned Numbers Database Technical Requirements Unveiled and Awaiting Comments

The long awaited draft technical requirements for the FCC’s reassigned numbers database was released today. At the time of the adoption of an order establishing this database in December 2018, the FCC tasked its North American Numbering Council (NANC) with studying several technical issues that are prerequisite to ensure the effectiveness of this database within a year. However, stating that the task was unexpectedly complex, the NANC sought two extensions of the deadline in June and in September 2019, using the additional time to formulate baseline technical requirements for the database.

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TRACED Act Creates New FCC Implementation Timelines

As predicted, amendments to the TCPA – in the form of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the “TRACED Act”) – were signed into law by the President of the United States on December 30, 2019. The Chairman of the Federal Communications Commission (FCC) applauded this milestone on Twitter, commenting: “[T]he TRACED Act was signed into law, giving the FCC and law enforcement greater authority to go after scammers.” As the saying goes, with great power comes great responsibility: the enactment started the countdown for a long list of actions that the FCC is required to take during 2020 and beyond. This will add to the already active TCPA dockets at the FCC.

We share below the timeline for these actions to help our readers anticipate and prepare for the regulatory activities that will ensue. We summarized the content of these required FCC actions previously at this post.
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Legislation Looking Likely on a Number of TCPA “Hot-Button” Issues

Senate Bill 151, now called “the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (the “TRACED Act”), has been reconciled with the House of Representatives’ bipartisan bill House Bill 3375 and was passed in the House on December 4, 2019. This revised amendment has been returned to the Senate for a final vote and is expected to become final legislation “if not this week, then next week,” according to the bill’s sponsor, Representative John Thune. Thus, the prospects for passage of TCPA legislation currently look quite positive.

As drafted, the legislation will kick off a number of activities by the FCC, and may, as a practical matter, require the agency to take prompt actions on long-awaited rulings on critical statutory definitions. We highlight below some of the most notable revisions in the TRACED Act made since July 2019.

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TCPA Legislation on the Horizon?

While the FCC has a record open to adopt guidance and a new definition for what it considers as an “automatic telephone dialing system” (ATDS) and related TCPA matters, there appears to be growing consensus on “Robocall” legislation in the two houses of Congress that may be moving TCPA legislation closer to reality. On the heels of the Senate passing Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”)Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”), the House of Representatives yesterday introduced a new bipartisan bill – House Bill 3375 – that would bolster the prospects that Congress may be able to pass legislation this year.

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Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case

The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading   »

FCC Adopts Order Creating a Centralized Reassigned Number Database

After several proceedings and requests for comment, the FCC has approved the creation of a single, centralized reassigned numbers database—a new resource to identify and avoid calling reassigned numbers. Ideally, the proposed database will help businesses in identifying numbers that are being recycled before they are called, thus helping to cut down on the number of calls consumers receive by mistake. This alert outlines the framework of the new database, including access, administration, types of information collected, usage, and potential costs and benefits.

Read the full alert.

TCPA Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter, the Intended Recipient of its Debt-Related Calls

One of the central issues that was before the D.C. Circuit in ACA International v. FCC was whether the term “called party” refers to the intended or the unintended recipient of a call. In its July 10, 2015 Declaratory Ruling and Order, the FCC interpreted the term to be the current “subscriber” on the account to which the phone number is assigned or “the non-subscriber customary user of the phone.” Under this interpretation, businesses that try in good faith to contact consumers who have consented to receive such calls face significant liability with minimal recourse, when those calls reach someone else. The D.C. Circuit set aside the FCC’s “treatment of reassigned numbers as whole,” which includes its interpretation of called party. In light of the D.C. Circuit’s ruling, the FCC is currently seeking comment on critical TCPA issues with an eye toward taking a much broader view of the TCPA landscape than it did in its 2015 TCPA Order. In the meantime, one business involved in a TCPA action is seeking indemnification from the consumer it intended to reach in making the calls that form the basis of the TCPA action against it. Continue reading   »

Comments Filed in Reassigned Numbers and Post-ACA International Proceedings

Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). Continue reading   »

FCC Seeks Comments on Key Issues Post-ACA Int’l

Less than a week after the D.C. Circuit issued its mandate in the ACA Int’l v. FCC matter, the FCC has now asked for comments on critical TCPA issues in light of the D.C. Circuit’s now-final decision. See ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In its May 14, 2018 Public Notice, the Consumer and Governmental Affairs Bureau has identified several key issues on which it seeks comments, including the scope of the ATDS definition, how to treat calls to reassigned numbers, and standards for revoking consent. On each issue, the Notice confirms that the FCC is taking a much broader view of the TCPA landscape than it did in its 2015 Declaratory Ruling and Order (“2015 TCPA Order”)—and is willing to consider, in light of the ACA Int’l decision, bright-line rules that will provide much-needed clarity to businesses and litigants. Continue reading   »