No Additional Authority Needed by FCC
The Compliance Corner by Karl Koster
Last Wednesday, April 18, Senator John Thune convened a senate hearing on “Abusive Robocalls and How We Can Stop Them.” The hearing involved testimony from staff members from the FTC, FCC, and various industry associations, all focused on addressing the problem of abusive robocalls. The hearing can be viewed in its entirety here: https://www.commerce.senate.gov/public/index.cfm/hearings?ID=E0EB17D2-A895-40B4-B385-F94EA2716957
What struck me was a question that Senator Thune asked Ms. Rosemary Harold, the Chief of the FCC's Enforcement Bureau. Senator Thune asked about whether agencies have sufficient legal tools to go after abusive robocallers. The dialog went something like this: (around 1:56:30 into the webcast)
Sen. Thune: “Do the agencies, do you all think you have the authorities you need to meet the challenge, the legal authority you need?”
Ms. Harold: “…We have two good grounds to do that. Almost all such robocallers use pre-recorded messages, which is part of the TCPA and was not affected by the recent court decision. They also spoof, and that's a completely different statute. Should the Commission, um should Congress decide to give us additional authority, of course we will pay close attention to that.”
The upshot of this exchange is that the FCC's Chief Enforcer does not see the recent D.C. Circuit's TCPA ruling, which vacated the FCC's interpretation of an ATDS, as adversely impacting the FCC's ability to target illegal robocallers. The TCPA includes prohibitions of playing a prerecorded announcement to a called party without their consent, and this prohibition is not dependent on the definition of an ATDS. The other tool referenced, most likely the Truth in Caller ID Act, also is not dependent on the definition of an ATDS. Both of these statutory tools give ample authority for the FCC to fine illegal robocallers.
While the D.C. Circuit's ruling vacated the FCC's interpretation of an autodialer, this pertains to the technology used to initiate a call. Most callers who receive an annoying or abusive robocall do not care about the technology used to initiate the call, they are annoyed by the fact that they received the call. All the more so if the call is a telemarketing call for which they have no relationship with the seller and are on the Do Not Call list. As for scam calls, no one wants to receive a scam call regardless of the technology used to initiate the call.
To recap, the FCC has stated that the D.C. Circuit's TCPA ruling does not impact their ability to go after the bad guys. Let's all remember that, and let the good guys continue making calls.
Karl Koster is the Chief Intellectual Property and Regulatory Counsel for Noble Systems, and a director of PACE. The opinions express are those of his own, and are not necessarily those of Noble Systems or PACE.