In early January, President Trump signed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act into law, supporting bipartisan legislative efforts to curb robocalls. The Act gives the Federal Communications Commission greater enforcement authority against illegal robocallers. Specifically, under the new law, the FCC can now extend the statute of limitations by up to four years in some cases, and can go after first-time scammers. The FCC also is allowed to assign civil penalties of up to $10,000 per call in certain instances. The penalties available in a civil suit remain $500 per call – and up to $1,500 per call for willful violations – where a private party is bringing suit. The TRACED Act does not alter or amend this private right of action. The TRACED Act is intended to resolve the FCC’s current struggle in actually collecting on penalties.
The new law also targets the issue of spoofing, where legitimate phone numbers are highjacked and used by illegal callers. To work towards stopping this practice, service providers are required to implement the STIR/SHAKEN call authentication framework, and to offer robocall blocking services at no additional charge to consumers.
The Act also requires the FCC to implement rules regarding when a carrier is permitted to block calls that fail STIR/SHAKEN authentication, and to implement a safe harbor for calls that are improperly but accidentally blocked by carriers. This particular portion of the Act has raised concern with industry groups who fear that legitimate messages will not be delivered due to the potential for wireless carriers to aggressively block messages by utilizing non-public, vague, or shifting standards or algorithms. To address this concern, the amended version of the Act allows callers who have been “adversely affected” by call blocking to seek redress, by requiring the FCC to establish “a process to permit a calling party adversely affected by the information provided by the call authentication framework…to verify the authenticity of the calling party’s calls.”
The Act also indicates, in relevant part, “Too often consumers receive a torrent of robocalls that are intended for the person that previously had their phone number.” To address this, the Act requires the FCC to issue a report to Congress to ensure that the FCC quickly is making available the reassigned number database it agreed to implement in December 2018. Notably, the Act clarifies that when a consumer gets a new phone number, robocallers cannot keep calling to look for the person that previously had that phone number.
The FCC also will review its own measures against robocallers, and annually report to Congress about, among other things, its enforcement activities. Moreover, it will consult with the Attorney General to convene an interagency task force to study the government prosecution of robocall violations. Notably, TRACED does not create a new statutory scheme; rather, it modifies and enhances the existing Telephone Consumer Protection Act in a manner that assures that the TCPA will remain the official federal response.