On November 16, 2018, U.S. Senator John Thune (R-S.D.), chairman of the Senate Commerce, Science, and Transportation Committee, and Senator Ed Markey (D-Mass.) a member of the committee and author of the TCPA, teamed up to announce the introduction of a bi-partisan bill, S.3655, the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act.
The TRACED Act proposes several changes to the TCPA in order to ramp up enforcement against unwanted robocalls and text messages, including:
- A provision that purportedly broadens the FCC’s authority to levy civil penalties of up to $10,000 per call against violators who intentionally disobey telemarketing restrictions;
- A provision requiring providers of voice services to adopt call authentication technology, thereby enabling a telephone carrier to verify that incoming calls are legitimate and should be passed through to consumers;
- A provision expanding TCPA enforcement powers to the Department of Justice, Federal Trade Commission, Department of Commerce, State Department, Department of Homeland Security, the Consumer Financial Protection Bureau, and other federal agencies and non-federal entities; and
- A provision requiring the above-named agencies, along with the FCC and state attorneys general, to identify and report to Congress regarding deterrence improvements and increased civil and criminal prosecution of scam robocalls at both the federal and state levels.
Of most interest to me in this bill is the fact that it expressly provides the legal requirements for call authentication will not become effective if, within 12 months of the Act’s adoption, the industry has established “voluntary rules for an appropriate and effective call authentication framework” and “agreed voluntarily to participate in the authentication framework”. As we near the end of this term’s Congress, it is unlikely that the TRACED Act will move forward, but it seems to have been drafted as a clear signal to carriers to either get on board with a call authentication process or expect Congress to get serious about imposing greater regulation to crack down on unwanted calls and texts.
While the focus on spam calls and texts is certainly understandable, what is not included in the TRACED Act is what should have businesses concerned. Specifically, the bi-partisan legislation would do nothing to address the issue of abusive TCPA litigation. This omission should sound alarm bells for text message providers, call centers, and others in the marketing industry because it indicates that the legitimate concerns of businesses about the rise in predatory TCPA litigation are not being understood by either party right now. Clearly, then, more must be done to educate Congress about how the TCPA’s draconian penalties do more to harm law-abiding companies who are regularly threatened with litigation than it does to target and weed out bad actors.
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