Davis Wright Tremaine LLP

As 2019 wound down, Congress passed and President Trump signed into law the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (TRACED Act) aimed at turning back a tide of illegal “robocalls” (54 billion in 2018) that continue to plague consumers.

Prior to the bill’s signing, the Federal Communications Commission (FCC) issued a public notice in its ongoing call-blocking rulemaking—which the new law now compels the agency to conclude—seeking comment on the availability of call-blocking tools to consumers, their effectiveness, and the effect of FCC actions that recently empowered providers to use call-blocking as a default from which consumers may opt out.

TRACED Act Requirements

As discussed below, the TRACED Act:

  • Requires voice service providers to develop call authentication technologies that have been urged by the FCC and pursued by industry leaders;
  • Expands FCC enforcement authority against robocall offenses with a longer statute of limitations and increased forfeiture amounts;
  • Creates a statutory mandate for the already-underway FCC call-blocking rulemaking and deadlines, and other ancillary proceedings that seek to limit unwanted automated calls and texts;
  • Prohibits charges to consumers for call-blocking services that voice providers offer while creating a safe harbor for providers’ call-blocking efforts;
  • Prescribes new FCC reporting on the initiatives required by the Act, including authorization to formally recommend legislation in certain areas; and
  • Lays a foundation for an Attorney General-led interagency task force to examine prosecution of robocall offenders and creates a pathway for DOJ prosecutions.


The TRACED Act instructs the FCC to adopt rules and issue reports to facilitate robocall reduction, imposes new obligations on carriers in connection with robocall mitigation, and adds enforcement options against robocall violations. The Act orders the FCC to require within 18 months that providers of voice services implement the secure telephone identity and signature-based handling of asserted information using tokens standards—i.e., the “STIR/SHAKEN” authentication framework—that providers currently are in the process of operationalizing unless within 12 months of enactment implementation occurs voluntarily.

At the end of that 12-month period, the FCC must report to Congress on the status of that implementation and its efficacy, and must also announce best practices for voice service provider implementation of effective call authentication frameworks.

The Act requires the FCC to recognize and address the burdens and barriers to adopting STIR/SHAKEN across the country, including the extent to which some carriers may need extra time to implement it, and alternative interim methods of authentication and robocall mitigation.

The Act includes a safe harbor to help incentivize providers to authenticate calls and block unlawful robocalls, requires them to offer blocking services free of charge to consumers, imposes transparency requirements as to what is blocked and the ability to seek redress from inaccurate blocking, and ensures calls such as those from public safety providers are not wrongly blocked.

The FCC must also initiate a rulemaking to help protect consumers from receiving unwanted calls or text messages from callers using unauthenticated numbers while also protecting consumers lacking access to call authentication.

TCPA Exemptions and Expansions

The TRACED Act also requires that the FCC complete a rulemaking within one year to revisit the exemptions in its rules implementing the Telephone Consumer Protection Act (TCPA)—the primary federal law restricting autodialed and prerecorded calls—such as the exemptions allowing calls not made for commercial purposes, and to potentially limit the classes of parties that may make exempt calls, the parties that may be called, and the number of calls allowed.

The Act additionally requires the FCC to report to Congress to ensure expeditious implementation of the reassigned number database the FCC announced in December 2018. The FCC also must initiate a proceeding to protect consumers from “one-ring scams” in which overseas scammers call a number to try to induce a callback that results in significant charges to the consumer.

The TRACED Act amends the TCPA’s enforcement and civil forfeiture provisions by extending the statute of limitations up to four years, giving the FCC more time to pursue violators, and adds additional penalties it may impose. The Act also creates an exception to the general requirement in the Communications Act that the FCC must first issue citations to violators who do not hold FCC licenses or authorizations to allow forfeitures against first-time robocall offenders.

Here, too, reports to Congress are required detailing enforcement activities against illegal robocallers in which the FCC must also propose ways to decrease the number of robocalls through legislation.

FCC Reporting and AG Task Force

The Act also requires the FCC to assess ways it might modify its policies granting access to numbering resources to reduce the number of illegal robocallers. New provisions for criminal enforcement against robocalls involving willful, knowing, and repeated robocall violations with intent to defraud, cause harm or wrongfully obtain anything of value, are also included.

Further, the TRACED Act requires the Attorney General and FCC to consult in convening an interagency task force studying prosecution of robocall violations, including how federal law and budgetary constraints inhibit enforcement, and to identify existing and new policies and programs to aid coordination between federal and state regulators, and between countries, to prevent violations. The Act also requires creation of a “Hospital Robocall Protection Group” advisory committee to explore how voice service providers and state/federal governments can combat unlawful robocalls to hospitals.

Meanwhile, as Congress was sending the TRACED Act to the President, the FCC issued a public notice seeking comment on a variety of call-blocking initiatives that are also a significant focus of the Act.

Public Comment Period

Building on the above-referenced FCC rulemaking and declaratory ruling allowing voice providers to offer consumers call-blocking based on reasonable analytics on an opt-out basis, the public notice inquires about several issues for an FCC staff report on the topic. The public notice solicits feedback regarding call-blocking tools available to consumers, including their number and variety, the extent to which they are offered by voice providers directly and/or by third parties, and whether fees are charged for them.

It also asks about the effectiveness of these tools, including how they define false positives and false negatives and the rates thereof, and the metrics that should be used to assess effectiveness. Next, the notice asks about the impact of FCC actions, including its prior allowance of opt-out default call-blocking and the impact of call-blocking on 911 services and public safety.

Comments in response to the public notice are due January 29, 2020, and the deadline for replies is February 28, 2020.

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