Manatt, Phelps & Phillips, LLP

Robocalls are a hot topic in Washington, D.C., with new legislation proposed, testimony from the Federal Trade Commission (FTC) about its efforts to combat the problem and a Second Further Notice of Proposed Rulemaking from the Federal Communications Commission (FCC) having all been released in the past few months. These give some important insight into how robocalls may be treated in the future and could give rise to future Telephone Consumer Protection Act (TCPA) litigation.

PROPOSED LEGISLATION

First, in April 2018, Sen. Richard Blumenthal (D-Conn.) introduced the “Repeated Objectionable Bothering of Consumers on Phone Act”—otherwise known as the ROBOCOP Act (named after the movie, of course)—a bill that would require telecommunications companies to verify accurate caller IDs and offer consumers free robocall-blocking technology that would not block public safety entities and calls the consumer consents to receive (such as calls about school closings).

“Households across the country are harangued daily by millions of robocalls—calls that at best are a nuisance and at worst threaten unsuspecting consumers with financial scams,” Sen. Blumenthal said in a statement about the proposed legislation. “The ROBOCOP Act restores power to consumers by requiring phone companies to provide effective technology that blocks unwanted calls at no cost to the consumer.”

Senate Bill 2705—which would also establish a new private right of action against telecommunications companies for violations of the statute—is currently being considered by the Senate Committee on Commerce, Science and Transportation.

Not to be outdone by ROBOCOP, a second bill addressing robocalls was introduced in April 2018 by Sen. Brian Schatz (D-Hawaii) that would extend the statute of limitations for both the TCPA and the Truth in Caller ID Act to three years. Senate Bill 2694, dubbed the Robocall Enforcement Enhancement Act of 2018, was also referred to the Commerce, Science and Transportation Committee.

Both pieces of legislation were introduced in advance of a Senate hearing on “Abusive Robocalls and How We Can Stop Them,” where the Commerce, Science and Transportation Committee heard testimony about the ongoing fight to reduce the number of robocalls received by consumers.

FTC TESTIMONY

Also in April 2018, Lois Greisman, associate director of the Marketing Practices Division for the FTC’s Bureau of Consumer Protection, explained in a prepared statement to the Commerce, Science and Transportation Committee that changes in technology have enabled calls to be made more cheaply and on a larger scale than ever before, resulting in increased consumer frustration and significant harm, as illegal robocalls frequently pitch scams.

Greisman discussed the different tools currently used by the FTC to protect consumers, noting that there have been 135 enforcement actions since the FTC began enforcing the Do Not Call provisions of the Telemarketing Sales Rule against 439 corporations and 356 individuals. Of those resolved to date, the FTC has collected north of $121 million in monetary relief.

Over the past three years, the FTC has brought 11 actions targeting defendants responsible for making “billions” of robocalls, Greisman told lawmakers. Her testimony highlighted one notable case, where an Illinois federal court imposed the largest civil penalty in a Do Not Call case to date: $280 million against Dish Network.

The FTC also pursues technological solutions to the problem of illegal robocalls, working with experts, industry leaders and other stakeholders to develop new strategies, Greisman said, vowing the agency will continue to use “every tool at its disposal” to combat robocalls.

PROPOSED RULE MAKING

Finally, as we previously reported, the D.C. Circuit’s ruling in ACA International v. Federal Communications Commission struck down as well as affirmed a variety of FCC rule interpretations that had been in place since 2015. In the wake of that decision, the FCC has not only recently sought public comment on some critical unresolved issues relating to autodialers, but it also issued a Second Further Notice of Proposed Rulemaking (FNPRM) seeking comment on the impact of the decision in the context of robocalls and reassigned numbers just days after the D.C. Circuit’s opinion was issued.

Almost 17 months after hearing oral argument in the case, the federal appellate panel set aside the FCC’s overly expansive definition of “automatic telephone dialing system” and the FCC’s ruling on reassigned telephone numbers from 2015.

In an attempt to reconcile the D.C. Circuit’s opinion with its prior efforts with regard to reassigned numbers and the possibility of creating a database, the FCC has also requested that stakeholders weigh in.

Specifically, the Second FNPRM seeks input on issues such as how ACA International affects the FCC’s ability to adopt a safe harbor from TCPA liability for callers that choose to use a reassigned number database, the impact the opinion could have on the costs and benefits of the database options, and the appropriate authorizing statute for the FCC’s creation of a safe harbor (including whether the TCPA provides the FCC with such authority).

Comments will be accepted until June 7, with reply comments due by July 9.

To read Senate Bill 2705, click here.

To read Senate Bill 2694, click here.

To read Greisman’s prepared remarks, click here.

To read the Second FNPRM, click here.

Why it matters: Between the Senate hearing with testimony from the FTC, multiple pieces of legislation introduced and the FCC’s latest request for public comment on reassigned numbers, this time with respect to the impact of the D.C. Circuit’s decision in ACA International, robocalls remain top of mind for regulators and lawmakers alike.

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