TRACED Act Pt. 1: Is it the End for Robocalling?
Don’t start cheering yet, but a new law, the TRACED Act, could be heavily regulating those nosy, outbound sales calls and robocalls. The roll-out has hit some bumps in the road, but this quality of life legislation could have a big impact on your call activity and marketing as a whole.
What is the TRACED Act?
The TRACED Act is a recent piece of legislation designed to reign in the outbound calling companies that automatically call our homes and cell phones. It's full name is the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act. The law targets the predatory solicitors, but it also has to navigate the legitimate uses for automated calling like a dentist appointment reminder. It gives the Federal Communications Commission (FCC) more authority to go after the scammers responsible for unwanted robocalls. The FCC can now go after companies the first time they break the law and the statute of limitations is extended by up to four years in some cases.
$208,000,000 in FCC fines to robocallers. $6,790 collected by the FCC.
To combat and enforce this law, the FCC also increased the financial penalties against robocallers. The previous regulations were lax, and many companies were able to avoid the fines or dissolve before regulators could come down hard. According to a Wall Street Journal report, the FCC has charged robocallers $208 million USD in fines since 2015; however, violators have routinely failed to pay. The agency has collected a total of just $6,790. The previous law clearly wasn’t effective at deterring this malicious behavior.
Anecdotally, I can confirm my family and I received many more robocalls in the last year or two, and the data supports this as well. Based on one analysis from October, Americans are receiving a staggering 167.3 million robocalls a day. These companies have different tactics, and one of the most frustrating, ‘Call Spoofing’, will be heavily punished with this law. This is when their Caller-ID is manipulated to seem like a familiar number. Have you seen a phone number similar to your own and then realize it’s a spammer? That’s spoofing.
Some other quality of life improvements from this law include making it illegal to charge for robocall blocking on your phone bill. There will be tightened restrictions on what type of companies can use the legal version of robocalls. So your hospital will still give you appointment updates, but a credit card company you had 3 years ago won’t be able to notify you of new rates. One ring scams, that get the recipient to call back after the scammer hangs up, will also be much more heavily monitored and punished.
The law was signed at the end of 2019, and we are seeing its implementation in real time. And like many legislative efforts, there are timetables and legal hoops to jump through. On May 1st, 2020, the FCC adopted Section 3 of the TRACED Act which amends the Telephone Consumer Protection Act (TCPA) of 1991. The FCC's Enforcement Bureau removes the requirement that the FCC issue a citation prior to a proposed monetary forfeiture (i.e. a fine). This step also increased the statute of limitations to 4 years, which should help prevent the offenders delaying in the courts until they can get off scot-free.
The TCPA is a massive law which has been actively updated as technology has moved forward. The law is currently in a legal battle related to the Robocalling allowances which had been amended in 2015. A regulation was allowed for government debt collectors to use robocalling, while private lenders cannot. On May 6th, 2020, the supreme court heard William P. Barr et al. v. American Association of Political Consultants et al. which questioned the potential First Amendment Free Speech violation with this provision. If the government can use this tool to speak to people, why can't others? It's a fair question, albeit an unpopular one given how frustrating robocalling has become. This case is pending and will be decided in June, but this tangential legal issue could be telling for the future battle the TRACED Act may see.
There are technical challenges to confronting the robocall scammers because it requires tracking information across different telecommunication infrastructure. A number of the main scammers were forwarding calls across multiple networks, and many originated their operation in India. Luckily, technology to certify the authenticity of a call has been underway and it's known as SHAKEN/STIR or Signature-based Handling of Asserted Information Using toKENs (SHAKEN) and the Secure Telephone Identity Revisited (STIR). In March, AT&T and Comcast announced they had successfully tested the SHAKEN/STIR system across cell providers. This was a significant hurdle in implementing the new verification systems, and it is a positive sign that the TRACED Law will go into full effect on schedule.
The TRACED Act could take 18 months to fully take effect, and we will be seeing significant changes to outbound calling. Barring any legal troubles, we could see a number of these predatory companies lose their main source of leads, but it's unlikely they will go away forever. In Part 2, we will go further into the network of technology that enables the scammers, and how they are/were abusing it. We'll look at how legitimate, outbound marketing companies will be affected, and we'll also go into the directions these type of compliant companies can pivot to as outbound calling is tamped down.
Most of all, I think we can all look forward to less unsolicited calls, and eventually none at all! Next time you see an unknown number in your area code, pick it up. It might be an old friend!