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On August 24, the FCC released a proposed total fine of more than $5.1 million against two consultants and their firm for allegedly violating the TCPA by making 1,141 unlawful robocalls to wireless phones without prior express consent. According to the FCC, the robocalls utilized messages informing “potential voters that, if they vote by mail, their ‘personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts.’” As previously covered by InfoBytes, the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act amended the TCPA to not require the FCC to warn robocallers before violations could be counted toward a proposed fine. The recent action is the first the agency has taken regarding the amendment. According to a statement by the FCC acting Chairwoman Jessica Rosenworcel, the agency is “stepping up its efforts to combat illegal robocalls.”
On August 10, the U.S. Court of Appeals for the 9th Circuit revived a lawsuit against an insurance servicing company (defendant) for allegedly using both an automated telephone dialing system and an artificial or pre-recorded voice to place a job-recruitment call without obtaining the plaintiff’s consent. According to the opinion, the plaintiff filed a suit alleging, among other things, TCPA violations after receiving the pre-recorded voicemail from the defendant regarding his “industry experience” and that the defendant is “looking to partner with select advisors in the Los Angeles area.” The district court dismissed the plaintiff’s action under Federal Rule of Civil Procedure 12(b)(6) for failing “to state a claim upon which relief can be granted,” holding that the TCPA and the relevant implementing regulation do not prohibit conducting job recruitment robocalls to a cellular telephone number. In addition, the district court “read the Act as prohibiting robocalls to cell phones only when the calls include an ‘advertisement’ or constitute ‘telemarketing,’ as those terms have been defined” by the FCC. The court found that since the plaintiff admitted that the job recruitment call he received did not involve advertising or telemarketing, he had not adequately pleaded a violation of the TCPA.
On the appeal, a three-judge panel of the 9th Circuit determined that the district court misread the TCPA and the implementing regulation when dismissing the plaintiff’s suit and remanded the case for further proceedings. The appellate court noted that the FCC provision was intended to tighten the consent requirement for robocalls that involve advertising or telemarketing, but the lower court incorrectly perceived the provision as “effectively removing robocalls to cellphones from the scope of the TCPA’s coverage unless the calls involve advertising or telemarketing.” Moreover, the panel wrote that “[t]he applicable statutory provision prohibits in plain terms ‘any call,’ regardless of content, that is made to a cellphone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either for emergency purposes or with the prior express consent of the person being called.”
On August 9, state attorneys general from all 50 states and the District of Columbia, through the National Association of Attorneys General, sent a letter to the FCC urging the Commission to confront illegal robocalls by moving the deadline for smaller telephone companies to implement caller ID technology, STIR/SHAKEN, by June 30, 2022 at the latest. The TRACED Act (the Act), which became law in 2019 (covered by InfoBytes here), requires phone companies to implement STIR/SHAKEN technology on their networks to ensure that telephone calls are originating from verified numbers, not spoofed sources. As previously covered by InfoBytes, the STIR/SHAKEN caller ID authentication framework is an “industry-developed system to authenticate Caller ID and address unlawful spoofing by confirming that a call actually comes from the number indicated in the Caller ID, or at least that the call entered the US network through a particular voice service provider or gateway.” Currently under the Act, large companies are required to implement the technology by June 2021, and smaller voice service providers have until June 2023. According to the letter, the state attorney generals’ advocate that “[r]emoving — or, at least, curtailing — the Commission's blanket extension for small voice service providers that flout the commission's largess by perpetrating this high-volume traffic would truly serve the purpose of the TRACED Act: ‘to deter criminal robocall violations and improve enforcement’ of the TCPA.”
On August 5, the FCC announced a “fair and consistent” process for reviewing actions regarding a voice service provider’s ability to comply with the FCC’s anti-spoofing caller ID authentication rules. FCC rules require broad implementation of the STIR/SHAKEN caller ID authentication framework on voice service providers’ IP networks. As previously covered by InfoBytes, the STIR/SHAKEN framework addresses, among other things, “unlawful spoofing by confirming that a call actually comes from the number indicated in the Caller ID, or at least that the call entered the US network through a particular voice service provider or gateway.” Since June 30, all major phone companies are using the STIR/SHAKEN caller ID authentication framework in their IP networks (covered by InfoBytes here). To combat illegal spoofing, the STIR/SHAKEN standards are considered a common digital language utilized by phone networks, which facilitates valid information to be passed from provider to provider. The standards also allow most caller ID information to be verified for providers and third-party consumer protection services to use that information to inform call blocking or warning services to protect customers. According to the FCC, “[t]he widespread implementation of STIR/SHAKEN is a major step forward in the FCC’s fight against malicious spoofing and scam robocalls.”
On July 13, the New York governor signed S.3941, which expands the state’s definition of telemarketing to include marketing by text message. A press release issued by the governor noted that expanding the definition closes a loophole in state law that previously limited the definition to phone calls, including unwanted robocalls. “Electronic text messages to  mobile devices have become the newest unwelcomed invasive marketing technique. Consumers should not be burdened with excessive and predatory telemarketing in any form, including text messages,” the press release stated. The act takes effect 30 days after becoming law.
On June 3, the FCC announced that it entered into a memorandum of understanding (MOU) with the Australian Communications and Media Authority (ACMA) on providing mutual assistance in the enforcement of laws on certain unlawful communications, such as robocall, robotexts, and “spoofing.” FCC Acting Chairwoman Rosenworcel noted that “[r]obocall scams are a global problem that require global commitment and cooperation” and that coordinating with ACMA can aid in removing scammers off of networks to protect consumers and businesses. ACMA Chair Nerida O’Loughlin noted that the agreement strengthens the existing relationship between the ACMA and the FCC in the regulation of unsolicited communications. According to the MOU, the FCC and ACMA understand that it is in their common public interest to, among other things: (i) “cooperate with respect to the enforcement against Covered Violations, including sharing complaints and other relevant information and providing investigative assistance”; (ii) enable “research and education related to unlawful robocalls and caller ID spoofing or overstamping”; (iii) “facilitate mutual exchange of knowledge and expertise through training programs and staff exchanges”: (iv) encourage awareness of economic and legal conditions and theories related to the enforcement of applicable laws as identified in Annex 1 to the MOU; and (v) update each other regarding developments related to the MOU in their respective countries in a timely manner.
On May 19, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s dismissal of a proposed TCPA class action suit for lack of standing, finding that the named plaintiff did not claim anything other than a “bare procedural harm that resulted in no harm.” According to the opinion, the plaintiff—who worked as an investigator for an attorney who prepared TCPA lawsuits—received a prerecorded telemarketing call in 2005 from a marketing company on behalf of the defendant national bank. The plaintiff, using a false name and employer, then placed and recorded more than 20 investigative calls to the marketing company to determine the number and frequency of calls it made. He then provided the recordings to the bank and declined the marketing company’s offer to place him on their Do-Not-Call list. In 2011, the plaintiff sued the bank alleging a single count violation of the TCPA but did not allege that he suffered any annoyance or nuisance from the marketing company’s call. The bank moved for summary judgment, arguing that: (i) the plaintiff lacked Article III standing to sue; (ii) “the call was exempt from the TCPA under FCC rules because the parties had an established business relationship” because the plaintiff was a customer of the bank; and (iii) the recorded message’s content did not violate the TCPA. The district court agreed with the bank and granted summary judgment on all three grounds.
On appeal, the Third Circuit disagreed with the plaintiff’s assertion that all he had to do was allege a statutory violation in order to have standing to sue, declining “to adopt such an absolute rule of standing with respect to the TCPA.” Because “the TCPA is intended to prevent harm stemming from nuisance, invasions of privacy, and other such injuries,” the plaintiff must allege at least one of those injuries to show concrete harm necessary to demonstrate an injury-in-fact and establish standing to sue, the appellate court wrote.
On April 22, the FCC imposed a $4.1 million fine against a phone carrier for allegedly impersonating other carriers in telemarketing calls and deceiving consumers into changing carriers without consent. The FCC first proposed the fine in 2018 after the agency, state regulators, and the Better Business Bureau received many complaints about this conduct. According to the FCC, the company’s “actions specifically harmed elderly and infirm consumers who, in some cases, were left without telephone service for extended periods of time while the company refused to reinstate service until the unauthorized charges were paid in full.” FCC acting Chairwoman Jessica Rosenworcel issued a statement condemning the “ugly scam” as a violation of the Communications Act, and warned: “To anyone else using our nation’s phone systems to perpetuate this kind of scam, take note because our efforts won’t stop here.”
On April 13, the FCC took several actions associated with blocking illegal and unsolicited robocalls, including sending cease and desist letters (see here and here) to two carriers that “appear to be transmitting multiple unlawful robocall campaigns” and seeking updated information from all carriers and developers of call-blocking tools to learn more about the tools available to consumers and their effectiveness. Key questions include:
- Whether the companies are offering call blocking tools to consumers at no charge.
- How the companies measure the effectiveness of blocking tools.
- What protections the companies have put in place to ensure that call blocking does not interfere with emergency services.
In addition to seeking input from the industry, the FCC sent cease and desist letters to two carriers regarding the transmission of illegal robocalls through their networks. The letters warn the carriers that downstream carriers will be authorized to block all of their traffic if they do not take steps within 48 hours to “effectively mitigate illegal traffic.”
On March 17, the FCC issued a record $225 million fine against two Texas-based telemarketers and their associated companies for allegedly transmitting roughly one billion illegally spoofed robocalls falsely claiming to offer plans issued by well known-health insurance companies. The Truth in Caller ID Act prohibits telemarketers from manipulating caller ID information with the intent to harm, defraud or wrongfully obtain anything of value. According to the FCC’s investigation, one of the companies’ allegedly spoofed robocalls “caused at least one company whose caller IDs were spoofed to become overwhelmed with angry call-backs from aggrieved consumers.” One of the telemarketers also apparently admitted that he placed millions of spoofed calls each day, including to numbers on the Do Not Call list. FCC acting Chairwoman Jessica Rosenworcel issued a statement commenting on the agency’s “largest fine ever,” in which she noted that the “individuals involved didn’t just lie about who they were when they made their calls—they said they were calling on behalf of well-known health insurance companies on more than a billion calls. That’s fraud on an enormous scale.”
- Jonice Gray Tucker to discuss “Be Your Compliance Best in 2022” at the California Mortgage Bankers Association webinar
- Lauren R. Randell to discuss “Significant legal developments in the Northeast” at the 37th Annual National Institute on White Collar Crime
- Jonice Gray Tucker to discuss “Small business & regulation: How fair lending has evolved & where it is heading?” at the Consumer Bankers Association Live program
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek
- Jonice Gray Tucker and Kari Hall to discuss “Equity, equality, regulation and enforcement – The evolving regulatory landscape of fair lending, redlining, and UDAAP” at the ABA Business Law Committee Hybrid Spring Meeting