Robocalls: the FCC’s top consumer protection priority

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Since taking office in January 2017, FCC Chairman Ajit Pai has stated multiple times that combating illegal robocalls would be the FCC’s top consumer protection priority. In a blog post last year, Pai described common nuisances of robocalls, noting that “we’ve all been there.”

A growing number of Americans believe that robocalls are a serious issue—American consumers receive over 4 billion robocalls per month, and, according to FTC Robocall Challenge winner Aaron Foss, approximately half of all telephone calls are robocalls. Currently, unwanted robocalls are the top source of consumer complaints for both the Federal Trade Commission and Federal Communications Commission.

The FCC has responded to consumer complaints by bringing charges against individuals and businesses involved in illegal automated calling. Earlier this year, the FCC levied a $120 million penalty on Florida resident Adrian Abramovich, who had allegedly delivered almost 100 million fraudulent robocalls in three months. The FTC also brought charges against deceptive robocallers in 2018, including NetDotSolutions, TeraMESH Networks and World Connection. Each of these defendants have stated intents to contest their fines.

Congress, too, has taken an interest in combating robocalls. In a House Energy and Commerce hearing this year, Chairman Greg Walden (R-OR) described robocalls as “pervasive and invasive.” “At best,” Walden said, “these calls are annoying. At worst, they have the potential to scam and defraud consumers, especially senior citizens.” The number of robocalls is not the only issue; several members of Congress have expressed concerns that scammers could take advantage of the technology to target mass numbers of consumers.

In April, Senator Richard Blumenthal (D-CT) and Representative Jackie Speier (D-CA-14) introduced the ROBOCOP Act, which would require telecom providers to make robocall prevention technologies available for free. Two months later, Senator Ed Markey (D-MA) and Representative Frank Pallone, Jr. (D-NJ-6) introduced the Stopping Bad Robocalls Act, which would formally define “robocall” and implement more extensive consumer protections for all robocalls.

Although these two bills are stuck in committee, the RAY BAUM’s Act (which was introduced by Representative Marsha Blackburn (R-TN-7) in February) did pass and was signed into law. The RAY BAUM’s Act expands consumer protections from fraudulent calls and text messages originating outside the United States. The law also directs the FCC and FTC to create consumer education materials for robocalls and caller ID spoofing.

It is important to note, however, that not all robocalls are illegal. Many organizations rely on automated phone calls to communicate with their customers, and political, charitable and informational calls are exempt from the Telemarketing Sales Rule and the Do Not Call Registry.

As a result, some businesses expressed concern that the FCC’s 2015 Omnibus Order, which expanded the definition of automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act, would increase the number of business activities potentially subject to robocall-related litigation. The U.S. Chamber of Commerce contended that the 2015 definition of ATDS would prevent legal businesses from conveying information to customers. Subsequently, the D.C. Circuit overturned the FCC’s 2015 definition of ATDS in ACA International v. FCC (2018).

In light of the D.C. Circuit’s decision, the FCC sought public comment on defining ATDS. The agency received over 900 responses, and now, the question is how it will use this information to craft robocall policy. While multiple parties have a vested interest in combating unwanted robocalls, their individual proposals and actions – and the potential effects of these actions on consumers and businesses—are still a topic to watch.

For more information on robocalls and telecommunications policy, download our robocall primer.