In what can only be construed as a strong signal that state attorneys general are looking to focus their efforts on illegal robocalls, a letter signed by every state attorney general and the attorneys general of American Samoa and Puerto Rico was sent to USTelecom, a trade association that represents the interests of the telecom industry, outlining initiatives to identify the sources of illegal robocalls discussed at a meeting earlier this year between the Executive Committee of the Robocall Technologies Working Group for the National Association of Attorneys General and USTelecom. Importantly, USTelecom includes many of the country’s leading telecom providers and participates in the Industry Traceback Group (“ITG”).

The ITG plays an important role in identifying the sources of illegal robocalls. The letter stated that the “partnership between the ITG and the state attorneys general is a crucial one” in the quest to crackdown on illegal robocallers. The letter further encouraged the ITG to expand its capabilities related to tracebacks and said that the state attorneys general “contemplate increases in [their] issuances of subpoenas or civil investigative demands directly to the ITG.”

The priorities for the expansion of the ITG’s capabilities included:

  1. Utilizing a wider variety of call data sources to both diversify and aggregate as much pertinent robocall data as possible;
  2. Analyzing such data to identify past, current, and future illegal robocall campaigns and trends and to better understand the interconnected ecosystem of businesses facilitating illegal robocallers;
  3. Automating traceback investigations and increasing the total volume of such investigations;
  4. Alerting relevant law enforcement agencies, including state attorneys general, of suspected illegal robocall campaigns with sufficient information to trigger investigations;
  5. Enabling law enforcement agencies to upload and receive responses to subpoenas and civil investigative demands electronically;
  6. Providing swift and comprehensive compliance with such subpoenas and civil investigative demands electronically; and
  7. Identifying non-cooperative voice service providers (VSPs), such as those that do not participate in the traceback process, repeatedly originate or accept illegal robocalls, regularly are the domestic point of entry for illegal robocalls originating outside the United States, and repeatedly are incapable of providing sufficient records.

The A.G.s believe implementing these priorities, “in conjunction with the steps taken by the state attorneys general and our federal counterparts will further our collective goal of combating unwanted and illegal robocalls.”

The letter is clear that the A.G.s have noticed considerable growth in the amount of the illegal robocalls targeting the American people and now are taking meaningful steps to bolster “its enforcement efforts against illegal robocallers and other related bad actors.” Indeed, the timing of the letter from the state A.G.s to USTelecom is more than salient—it is tip-off that state A.G.s are gearing up to bring enforcement actions at a time when they have seen states’ budgets decimated and state A.G.s be laser-focused on issues like price-gouging and scams related to the coronavirus (“COVID-19”) pandemic. While the illegal robocalls have been a thorn in everyone’s side for a while, state A.G.s now are laying the foundation for future enforcement actions with their encouragement of carriers to gather a wider variety of call data and to analyze such data to pinpoint illegal robocall campaigns.

One interesting factor, however, about this tactic by the state A.G.s is that, while the propagators of illegal robocalls who are eventually identified will feel the force of actions brought by the A.G.s, the telecom providers like the ones represented by USTelecom arguably may be made to bear the enforcement burden in the interim by being asked to expend effort to collect more data, to alert law enforcement, like state A.G.s, of suspected illegal robocall campaigns with sufficient information to trigger investigations, and to make it easier for law enforcement agencies to furnish telecom providers with subpoenas and civil investigative demands. Put differently, while the telecom providers may not be the targets of these investigations, they may be forgiven if they were to feel as though they were as a result of the state A.G.s’ wish list coming to fruition.

The upshot ultimately is, however, that targeting these illegal robocalls is a win-win scenario for state A.G.s—they get to tout going after something that everyone disdains while also leveraging enforcement actions to bring in funds to cash-strapped state budgets during a time when revenue is hard to come by due to COVID-19.

Given this, in the near future, state A.G.s are likely to exercise their authority to enforce state and federal privacy laws, including the Telephone Consumer Protection Act’s prohibition on placing telemarketing solicitation calls to consumers who were registered with the National Do Not Call Registry, and to continue laying the foundation by issuing subpoenas and CIDs to groups like the ITG to further the collection of information.