On Dec. 30, 2019, President Trump signed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act into law. As its name implies, the bipartisan TRACED Act targets unwanted and illegal robocalls by requiring carriers to implement a number-authentication system allowing consumers to better identify unwanted robocalls and by stiffening penalties for robocalls. The TRACED Act also contains important modifications to the Telephone Consumer Protection Act (TCPA), which governs the use of automatically dialed telephone calls and text messages.
The TRACED Act expands the enforcement powers of the Federal Communications Commission (FCC) relative to the TCPA. Notably, the TRACED Act allows the FCC to pursue civil forfeiture penalties against those who violate the TCPA’s restrictions on the use of automatic telephone dialing systems and to tack on an additional $10,000 penalty for those who do so intentionally. The TRACED Act also extends the statute of limitations for FCC civil forfeiture actions against those who violate the TCPA’s prohibition on causing caller identification services to transmit misleading or inaccurate data from two to four years. The TRACED Act requires the FCC to report to Congress on its TCPA enforcement activities by the end of 2020. The law further requires the FCC to report to the Department of Justice (DOJ) whenever it finds that repeated robocall violations are being made within an intent to defraud or wrongfully obtain anything of value. This will allow for increased criminal investigations by the DOJ and better cooperation amongst the governmental departments.
The TRACED Act also tackles the problem of “one-ring scams,” whereby a caller (usually overseas) makes a call and allows the call to ring the called party for a short duration, in order to prompt the called party to return the call, thereby subjecting the original called party to charges. The FCC is directed to issue a proceeding, within four months of the TRACED Act’s enactment, to consider how to better protect the public from such scams.
In addition to these new enforcement tools, the TRACED Act suggests that additional TCPA-related regulation is in the making. The attorney general, in consultation with the FCC, is directed to convene an interagency working group to study government prosecutions of TCPA violations and to identify constraints to such actions. The working group is required to report to Congress within 270 days of enactment of the TRACED Act. The TRACED Act also gives the FCC one year to reexamine regulatory exemptions to the TCPA and directs the FCC to ensure that all exemptions contain requirements limiting the types of entities who can make and receive exempted calls and the number of exempted calls that can be made to a particular number.
The upshot is that businesses should prepare for more TCPA activity—both on the enforcement and the regulatory sides—from the FCC in 2020. Increased regulatory activity will be particularly important to follow, as class action TCPA lawsuits are likely to track new regulations. Companies should make sure that their contracts and methods comply with the TCPA and recommended best practices.