Just over a month after the D.C. Circuit struck down large portions of the FCC’s 2015 Declaratory Ruling interpreting the Telephone Consumer Protection Act (TCPA), several developments on Capitol Hill last week suggest that Congress has renewed its focus on robocall issues. While these actions are preliminary, it could indicate that addressing robocalls may be priority for Congress ahead of the mid-term elections.
The flurry of activity related to robocalls began with a hearing before the Senate Committee on Commerce, Science, and Transportation on April 18, 2018, entitled “Abusive Robocalls and How We Can Stop Them.” During the hearing, the Committee members first posed questions to Adrian Abramovich, who the FCC alleged in a June 2017 Notice of Apparent Liability (NAL) violated the Truth in Caller ID Act by placing more than 95 million robocalls to consumers while “knowingly causing the display of inaccurate caller ID information.” Mr. Abramovich appeared before the Committee pursuant to a subpoena and provided answers to general questions about robocalling practices. However, he refused to answer questions related to his specific activities or the allegations in the FCC’s NAL, citing his Fifth Amendment right against self-incrimination, which prompted Committee Chairman John Thune (R-SD) to suggest that the Committee may seek to hold him in contempt of Congress.
The Committee then heard testimony from the following witnesses, representing the federal government, industry and businesses, and consumer advocates: Lois Greisman, Associate Director of the Marketing Practices Division for the FTC’s Bureau of Consumer Protection, Rosemary Harold, Chief of the FCC’s Enforcement Bureau, Kevin Rupy, Vice President of Law and Policy for the United States Telecom Association, Scott Delacourt, on behalf of the U.S. Chamber of Commerce, and Margot Saunders, Senior Counsel at the National Consumer Law Center. During this part of the hearing, Committee members posed numerous questions to the witnesses about what resources are currently available and what more could be done to reduce the number of robocalls consumers receive, and the commenters generally agreed that a holistic approach, including enforcement activity and technological improvements in the industry, would be the best way to address the issue.
During the hearing, Senator Richard Blumenthal (D-CT) also announced new proposed legislation entitled the Repeated Objectionable Bothering of Consumers on Phones (ROBOCOP) Act, which would, among other obligations: (1) require telecommunications companies to verify that caller ID is accurate, with some exceptions, and offer consumers optional free robocall-blocking technology; (2) establish a private right of action against telecommunications companies that violate Section 227 of the Communications Act; and (3) authorize the FCC to create a nationwide unblocking system that will ensure consumers are in control of the calls and text messages they receive. The bill is co-sponsored by Senators Ed Markey (D-MA), Ron Wyden (D-OR), Chuck Schumer (D-NY), Tammy Baldwin (D-WI), and Jeff Merkley (D-OR). Representative Jackie Speier (D-CA) introduced a companion bill in the House on the same day.
In addition, Senator Brian Schatz (D-HI), along with eleven co-sponsors, introduced separate legislation called the Robocall Enforcement Enhancement Act of 2018. This bill would extend the statute of limitations to three years for both the TCPA and the Truth in Caller ID Act. (Coincidentally, Ms. Harold specifically referenced harmonization of the statutes of limitations for these laws during the Commerce Committee hearing as one way that Congress could help the FCC in its enforcement efforts.)
Finally, fifteen Senators sent a letter to FCC Chairman Ajit Pai requesting that the Commission take a number of specific steps in response to the D.C. Circuit decision. In particular, the letter asks the FCC to (1) “establish a comprehensive definition of the term auto dialer”; (2) “maintain aggressive protections restricting unwanted calls and texts to reassigned numbers, and ensure that callers face liabilities for these illegal calls and texts in any future TCPA order or rulemaking”; and (3) “reiterate that consumers always have the right to revoke consent, regardless of any contractual clauses that may be included in user agreements.” The Senators requested that Chairman Pai respond in writing to their letter by May 9, 2018.
Meanwhile, the FCC has not yet received the remand from the D.C. Circuit in the ACA International case. (That is not scheduled until May 5.) The Commission is proceeding with examination of issues surrounding a possible database of reassigned numbers, having adopted a further notice of proposed rulemaking at its March Open Meeting. Comments on the proposal will be filed in June and July of this year.
We will continue to monitor Congressional activities related to robocalls, as well as the FCC’s pending rulemaking and will post any new developments here.