On June 24, 2019, the FCC’s adopted Declaratory Ruling and Third Further Notice of Proposed Rulemaking (“Third FNPRM”) was published in the Federal Register, triggering the commenting period deadlines. We previously discussed in detail the various components of the Third FNPRM here and here. Comments on this Third FNPRM are due by Wednesday, July 24, 2019, and reply comments are due by Friday, August 23, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.
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.
By directing voice service providers to deal with “unwanted calls” as part of its anti-robocall policies, the FCC seems to have moved well beyond addressing “illegal and spoofed robocalls.” The text of the FCC’s new “Call Blocking by Default” approach was released late on June 7, 2019, which, as we previously predicted, contains several changes to the draft version of the Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM). Depending upon your point of view, the Third FNPRM contains either a few hopeful signs that the FCC understands and is willing to address the practical effects of its highly consequential blocking edict, or troubling confirmation that it has little idea of what it has unleashed on businesses and consumers. Continue reading
Voice service providers soon may dictate which calls will reach you. The FCC honed in on “unwanted calls” when it voted at its Open Meeting today to adopt a Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM) permitting voice service providers to implement “Call Blocking by Default.” We are awaiting and will report on the ruling and notice when it is released. Continue reading
Businesses may dial large volumes of numbers daily for a variety of legitimate purposes. These calls now appear to have become swept up and conflated with illegal robocalls, with a number of undesirable consequences. Certainly policy makers at the FCC, in reacting to understandable concerns about fraudulent and illegal calling, have been introducing more and more opportunities for voice service and app providers to apply non-transparent, subjective standards to block calls, and further muddy the water for business callers. Continue reading
The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.
Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below. Continue reading
A two-year legal battle in the federal courts has come to an end, the Supreme Court announced last week. On April 15, 2019, it declined to review the Soundboard Association’s challenge to the legality of a Federal Trade Commission decision in 2016 that outbound telemarketing calls made through soundboard technology are robocalls.
Soundboard technology allows call center agents to interact and converse with consumers on a real-time basis using a combination of audio clips and the agent’s own voice. It may involve reading a pre-determined script, responding to queries and interjections from consumers by playing a pre-recorded audio clip, using “response keys” to generate common interactive conversational responses (such as “I understand,” “exactly,” “yeah,” or a recorded statement that the agent is a real person using audio clips to communicate with the consumer), or giving the consumer the option to speak with a live operator’s own voice for the duration of the call. It has been widely used by call centers in the last two decades. Continue reading
Yesterday, the FCC’s adopted Proposed Rulemaking (“NPRM”) to amend its Truth in Caller ID Rules was published in the Federal Register, triggering the commenting period deadlines. We previously compared the adopted NPRM with the draft document here and provided an overview of the proposed key provisions here. Comments on this NPRM are due by Wednesday, April 3, 2019, and reply comments are due by Friday, May 3, 2019. Commenters should follow the filing instructions provided in paragraph 40 of the NPRM. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.
On February 14, 2019, the FCC’s Consumer and Governmental Affairs Bureau released its first report on illegal robocalls (“the Robocall Report”) to address the “onslaught of unwanted calls that has led a lot of consumers to stop answering the phone altogether.” This report is compiled based on data points from more than forty comments submitted by voice service providers, trade associations, analytics companies, and consumers. The Robocall Report provided summary analysis on the following issues:
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. Continue reading