December 11, 2019

TRACED Act: Anti-Robocall Bill Passed by the House

Consumers and outbound marketers may soon get relief from those dreaded robocalls. These automatic, recorded calls have long infuriated consumers and led many to have any unrecognized incoming call go straight to voice mail. As a result, legitimate telemarketers have a difficult time reaching people who might be interested in their product.

Both the Senate and the House have passed versions of the TRACED Act, a bill that cracks down on this destructive practice. Currently, Congress is trying to reconcile both versions of the bill, but passage seems likely. Once the bill becomes law, the telemarketing industry will have to wait and see if it works.

TRACED Act Basics

Officially known as the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, the bill’s main sponsor is John Thune, Senior Senator for South Dakota. The Senate passed it on May 23, 2019, and the House passed its own version on December 4, 2019.

The purpose of the bill is to strengthen the current Telephone Consumer Protection Act (TCPA). The TCPA already outlaws certain types of robocalls but has had little effect in actually stopping them, in part because the TCPA is somewhat ambiguous.

The TRACED Act would help ensure the law’s enforcement and the collection of hefty financial penalties for violators.

Provisions of the TRACED Act

• The FCC will have no more than 18 months after the bill passes to require phone service providers to use an authentication framework (STIR/SHAKEN) that will make certain that consumers can trust the calls they receive are from a “real” number. This process should largely eliminate spoofing.
• It will also require the FCC to set rules for when a carrier can block calls that fail authentication and also to create a process for wrongfully blocked calls. This provision is especially important to legitimate telemarketers who fear they will have no recourse in the event of being blocked. The FCC will have to create and implement a corrective process for these marketers.
• Another provision means that the FCC will have to find “the best means of ensuring that a subscriber or provider has the ability to block calls from a caller using an unauthenticated North American Numbering Plan number.” While this provision is promising, it’s more of a goal than a promise.
• Enforcement of TRACED will no longer be up to the FCC alone.  Instead, they will assign a “working group” that includes the Department of Commerce, the Department of State, the Department of Homeland Security, the Federal Communications Commission and the Bureau of Consumer Financial Protection.
• Enforcing the TCPA has been mostly unsuccessful since it became a law. Now the FCC will have more power to enforce its regulations, including the power of assigning $10,000 per violation in addition to the $16,000 forfeiture penalty that already exists on paper. The $26,000 per call penalty, if enforced, will be a killer to the robocall industry.

Side Effects on Legitimate Marketers

Currently, robocallers routinely violate the TCPA and face no real penalty. As a result, they have not curtailed their bad behavior. If the new bill passes, the TCPA will no longer be toothless and may end the illegal robocall practice.

Legitimate companies that use outbound marketing have some real concerns about TRACED. The primary worry is that they will appear as a robocaller and have their legitimate calls blocked by carriers.

Although protocol to address this issue is in development, it will take some time to put into place. Until that process is up and running, telemarketers will have little recourse to clear themselves. Also, no one knows at this point if the process will be fair or efficient. Carriers and other companies in the telecom industry are striving to complete their processes to fully implement SHAKEN/STIR.

TRACED Act Will Bolster the TCPA

Enacted in 1991, the TCPA set regulations for robocalls in the United States. Although its effects were positive, changes in technology throughout the decades saw an increase in robocalls to consumers. As a result, new legislation is needed to combat the growing threat of robocalls.

Those in the industry may also be skeptical of the effectiveness of the bill on fining illegal robocall companies. Previously drafted to answer this issue, the TCPA has been ineffective producing results. In some cases, most notably in the healthcare industry, these regulations made it harder for legitimate business to operate.

Before anyone celebrates too much, they will have to see the bill passed and implemented, which will take some time. The TRACED Act will probably not be an immediate fix for the robocall problem, but it is a good start. Implementation of the SHAKEN/STIR framework is still needed to harness the full potential of the TRACED Act.

Bipartisan Support for TRACED Act

On another note, this bill is one of the few bipartisan efforts that has made it through the House and Senate in recent years. This demonstrates the urgency of the situation and that lawmakers are serious about attacking this issue. Support for the bill is almost unanimous.

If the bill performs as promised, it will benefit legitimate marketers because it will help them reach more potential customers. Once consumers no longer fear the robocall, they will be less hesitant to answer the phone for numbers they cannot immediately identify. They may also lose some of their animus toward telemarketers, which has reached an all-time high in the wake of innumerable robocalls. Many people lump telemarketers in with robocallers, which has a chilling effect on call center success.

TRACED Promotes Ethical Call Protocol

Also, simple fairness may ultimately reign. Companies that play by the rules should not be penalized because others do not. Up to this point, the illegal robocall folks usually operated without fear of any real penalty while they made consumers and their competition miserable.

The TRACED Act may have huge positive implications for early 2020. A strong bill on this matter will go far toward solving the robocall problem and consumers the relief they have longed for. That will be the best-case scenario.

Unfortunately, good intentions and the law do not always work well together. It will take time before the actual results of the law are apparent. Much depends on the FCC and its ability to formulate enforcement procedures. The need to count on the FCC may give many companies pause. Still, there is hope on the horizon that robocall companies will finally beheld to account and forced to end this invasive and already illegal practice.