The U.S. Senate has unanimously passed the Pallone-Thune TRACED Act (“Act”), named after Senators Frank Pallone, Jr. (D-NJ), and Sen. John Thune (R-SD). The bill is a result of a yearlong effort by legislators to clamp down on unwanted robocalls. Upon final signature from the President, the Federal Communications Commission (“FCC”) is tasked with implementation of all provisions of the law. Below is a summary of the most important parts of this Act.
A significant aspect of the Act is the expansion of the FCC’s current enforcement mechanisms to ensure that it has sustained enforcement capabilities to further go after robocallers. These new mechanisms include:
- Expansion of forfeiture penalties under the Telephone Consumer Protection Act (“TCPA”), including for first time offenders;
- Imposition of a $10,000 penalty for all “intentional violations” of the Act;
- The extension of the FCC’s forfeiture powers by expanding the statute of limitations from 2 years to 4 years.
Enhanced call authentication is the cornerstone of the Act. It requires that all voice service providers, over an 18-month period (subject to a reasonable extension), must implement SHAKEN/STIR technology that ensures caller-ID information is correctly authenticated free of charge to consumers.
Notably, the Act considers the importance of up-to-date technology for SHAKEN/STIR implementation to ensure rural areas receive the benefit of SHAKEN/STIR. Carriers that need additional time to implement this technology may be granted a reasonable extension.
Specific call authentication provisions include:
- No later than 18 months after the enactment of the Act, the FCC shall require a provider of voice service to implement STIR/SHAKEN in the provider’s voice service;
- No later than 12 months after enactment, the FCC must assess any burdens or barriers to implementation and take active measures such as delaying compliance for a reasonable period if there are identified burdens and barriers to implementation;
- In conjunction with small voice service providers, the FCC must strategically identify ways to ensure that consumers in rural areas have alternative effective methods to protect them from any unauthenticated calls during any compliance delay period;
- Voice service providers are prohibited from adding any additional charges to consumers or small business subscribers for call authentication technology;
- No later than 12 months after enactment, the FCC must issue best practices that voice service providers may use in implementing call authentication protocols;
- No later than 12 months after enactment, the FCC must promulgate rules for establishing when a provider of a voice service may block a voice call based on information provided by call authentication frameworks;
- No later than 12 months after enactment, the FCC must establish a safe harbor protecting those providers from liability for unintended or inadvertent blocking of calls or for the misidentification of individual calls based on the information supplied by the call authentication framework;
- No later than 12 months after enactment, the FCC must establish a process whereby an adversely affected calling party may verify the authenticity of its calls;
- Every 3 years after enactment, the FCC shall, after notice and comment, assess the call authentication framework and revise or replace the call authentication framework under the Act.
Enhanced consumer protections
Under current law, some robocalls can be made without consent. The Act requires that the FCC implement consumer protections on the FCC’s exempted classes of robocalls to ensure that consumers are protected from receiving too many calls from too many people. These consumer protections must specifically include limits on:
- The classes of parties that may make such calls;
- The classes of parties that may be called; and
- The number of calls allowed under the exemption.
The Act requires that robocall blocking services be provided to consumers. This service may be on an opt-out or opt-in basis and must be provided free of charge to consumers or callers. Most importantly, the Act requires that call blocking is provided with transparency and effective redress options for both consumers and callers. It is worth noting that the FCC issued a Declaratory Ruling allowing carriers to implement “blocking by default” for subscribers.
Heightened traceback efforts in conjunction with service providers
The Act requires that no later than one year after enactment, the FCC makes available on its website a report on the status of private-led efforts to trace back the origin of suspected unlawful robocalls by a registered consortium of voice service providers. The report shall include items such as:
- A description of private-led efforts to trace back the origin of suspected unlawful robocalls;
- A list of voice service providers identified by the registered consortium that registered in the efforts;
- The reason that a voice service provider identified by the registered consortium for not participating in the private-led efforts to trace back calls;
- How the FCC may use the information provided by the consortium to trace back the origins of robocalls and further help enforcement efforts.
* Ali Najaf contributed to this post.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.