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One Year Later: Tracking the Implementation of the TRACED Act
December 30, 2020 marked the one-year anniversary since the Pallone-Thune TRACED Act was signed into law. The law, whose name is an acronym for Telephone Robocall Abuse Criminal Enforcement and Deterrence, is the first major federal telemarketing legislation in more than a decade. An addition to the Telephone Consumer Protection Act (TCPA), the TRACED Act focuses specifically on efforts to regulate unlawful robocalls.
The TRACED Act is a complex piece of legislation, with numerous provisions and directives given to the Federal Communications Commission (FCC), Federal Trade Commission (FTC), Department of Justice (DOJ), and other entities within the executive branch. Over the past year, many of those provisions have been enacted, either partially or wholly. This article will provide an overview of the most significant efforts to implement the TRACED Act.
December 30, 2019 – President Trump Signs the TRACED Act Into Law
This followed shortly after the bill’s final passage in the Senate. Originally introduced in the spring of 2019, the bill followed several years’ worth of proposed federal legislation focusing on regulating robocalls.
February 4, 2020 – FCC Calls on Gateway Carriers for Assistance
The FCC published a press release calling on gateway carriers to assist the Commission in its efforts to enact proposed traceback rules relating to overseas callers using those carriers’ networks to call US-based consumers.
February 6, 2020 – Senators Urge Attorney General to Convene Interagency Working Group
One of the key provisions of the law was a directive to the DOJ to implement an interagency working group on robocall enforcement featuring members of the Department of Commerce, State Department, Department of Homeland Security, FCC, FTC, and Consumer Financial Protection Bureau (CFPB). In February, Senators John Thune (R-SD) and Ed Markey (D-MA) sent a letter to Attorney General Bill Barr imploring him to begin the process of putting together that working group. While the timeline for the creation of the group is not spelled out in the text of the law, the group is expected to give a report to the relevant congressional committees by September 20, 2020.
March 25, 2020 – FCC Announces Formation of Hospital Robocall Protection Group
As explained in the accompanying press release, the FCC created this working group to develop best practices for the following:
- How voice service providers can better combat unlawful robocalls made to hospitals.
- How hospitals can better protect themselves from such calls, including by using unlawful robocall mitigation techniques.
- How the Federal Government and State governments can help combat such calls.
March 27, 2020 – FCC Releases Proposed Rules for Traceback Consortium
These proposed rules are an effort to fulfill the TRACED Act’s directive that the the Commission issue rules “for the registration of a single consortium that conducts private-led efforts to trace back the origin of suspected unlawful robocalls.”
March 31, 2020 – FCC Mandates Implementation of STIR/SHAKEN by June 2021
In the press release announcing the order, the FCC writes that “[w]idespread deployment of STIR/SHAKEN will reduce the effectiveness of illegal spoofing, allow law enforcement to identify bad actors more easily, and help phone companies identify calls with illegally spoofed caller ID information before those calls reach their subscribers.” It estimates “that the benefits of eliminating the wasted time and nuisance caused by illegal scam robocalls will exceed $3 billion annually, and STIR/SHAKEN is an important part of realizing those cost savings.”
The announcement was accompanied by a Further Notice of Proposed Rulemaking (FNPR) seeking “comment on expanding the STIR/SHAKEN implementation mandate to cover intermediate voice service providers; extending the implementation deadline by one year for small voice service providers pursuant to the TRACED Act; adopting requirements to promote caller ID authentication on voice networks that do not rely on IP technology; and implementing other aspects of the TRACED Act.”
April 20, 2020 – FCC Solicits Letters of Intent for Traceback Consortium
Following the March 27 proposed rules, the FCC formally put out a call for “interested consortia to provide Letters of Intent in accordance with the Commission’s updated rules and the discussion of the statutory requirements and registration process.” USTelecom Industry Traceback Group would end up filing the only letter of intent. The FCC officially named them as the the Traceback Consortium on July 27, 2020.
April 28, 2020 – FCC Calls for Comments on Measures to Combat One-Ring Scams
The FCC issued a Notice of Proposed Rulemaking (NPRM) and a call for public comment on
how to “implement the TRACED Act and build upon [their] efforts to combat the one-ring scam by promoting consumer education and outreach, coordinating with [their] regulatory partners, and working more closely with industry to protect all Americans.” They also seek public comment on “allowing voice service providers to block a voice call when such call purports to originate from a number that is highly likely to be associated with a one-ring scam.”
May 1, 2020 – FCC Issues Order on the End of Warning Citations, Increased Fines and Lengthened Statute of Limitations for Robocall Violations
The most notable aspect of this Order is that it puts an end to the FCC’s practice of issuing warning citations to robocallers and spoofers before issuing penalties. This is a change from the Commission’s previous practice of issuing warnings before levying fines. Now violators could be fined without ever receiving a warning.
Other changes implemented by the Order include increasing the fines for intentional robocall violations to $10,000 per violation and extending the statute of limitations to four years for robocall violations and spoofing violations. All changes described in the Order would take effect on July 27, 2020.
July 16, 2020 – FCC Approves Safe Harbors for Companies That Block Calls
In response to concerns from phone service providers that the technology used to block unwanted robocalls could also inadvertently block legitimate calls, the FCC approved new safe harbors for phone companies that implement call blocking technologies.
The FCC also announced a FNPR requesting public comment “about additional steps to protect consumers from robocalls and better inform them about provider blocking efforts” and seeking “comment on notification and effective redress mechanisms for callers when their calls are blocked, and on whether measures are necessary to address the mislabeling of calls.”
September 9, 2020 – FCC Proposes Second Report and Order on SHAKEN/STIR
Following March’s STIR/SHAKEN Order, the FCC proposed a second major Order implementing the TRACED Act. According to the fact sheet released in conjunction with the announcement, the Order would:
- Require voice service providers to either upgrade their non-IP networks to IP and implement STIR/SHAKEN, or work to develop a non-IP caller ID authentication solution.
- Establish extensions of the June 30, 2021 caller ID authentication implementation deadline for small voice service providers, voice service providers that are currently incapable of obtaining a “certificate” necessary to implement STIR/SHAKEN, services scheduled for discontinuance, and non-IP networks.
- Require voice service providers subject to an extension to implement a robocall mitigation program on the non-STIR/SHAKEN-enabled portions of their networks.
- Require all voice service providers to file a certification in a Commission database showing how they are acting to stem the origination of illegal robocalls.
- Establish a process by which providers that make early progress on caller ID authentication implementation can obtain an exemption from the June 30, 2021 deadline, as required by the TRACED Act.
- Prohibit voice service providers from adding any line item charges to the bills of consumer or small business customer subscribers for caller ID authentication technology, as required by the TRACED Act.
- Require intermediate providers to implement the STIR/SHAKEN caller ID authentication framework in the IP portions of their networks by June 30, 2021.
The Order was formally adopted on September 29, 2020.
October 1, 2020 – FCC Releases NPRM on Reviewing TCPA Exemptions
Among the TRACED Act’s provisions is a directive to the FCC to review the TCPA’s exemptions regarding its consent requirements for the use of automatic telephone dialing systems (ATDS), artificial voice calls, and prerecorded calls.
The TRACED Act instructs the FCC to ensure that TCPA exemptions meet certain conditions The NPRM’s summary of Section 8 of the TRACED Act explains that those conditions are that the “exemption[s] contain requirements with respect to: ‘(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.’”
The exemptions apply to the following kinds of calls:
- Non-commercial calls to a residence
- Commercial calls to a residence that do not constitute telemarketing
- Tax exempt, non-profit calls to a residence
- HIPPA-related calls to a residence
- Package delivery calls to a wireless number
- Financial institution calls to a wireless number
- Healthcare-related calls to a wireless number
- Inmate calling service calls to a wireless number
- Cellular carrier calls to their own subscribers
The TRACED Act requires that Section 8 be fully enacted by December 30, 2020.
October 27, 2020 – DOJ Submits TRACED Act Working Group Report to Congress
The DOJ submitted to Congress a report compiled by the interagency working group referenced in the February 6 letter from Senators Thune and Markey to Attorney General Barr. The report was submitted more than a month after the deadline that had been required by the TRACED Act.
The report itself describes enforcement actions by the DOJ, FTC, FCC, and other government agencies to combat illegal robocalls and uphold the directives of the TRACED Act. It does not include any recommendations of further legislative or regulatory actions.
November 30, 2020 – FCC Releases Report and Order on One-Ring Scams
Following up on the April 28 NPRM, the FCC’s Report and Order on One-Ring Scams explains the Commission’s efforts to enforce Section 12 of the TRACED Act. That section directs the FCC “to consider measures to encourage voice service providers to prevent one-ring scam calls from reaching consumers, including rules that providers may block calls likely associated with one-ring scams.”
December 8, 2020 – FCC Issues Report to Congress on Reassigned Numbers Database
While the creation of the Reassigned Numbers Database was a project first proposed independent of the TRACED Act, the law required the FCC to submit a report to Congress on the progress made in creating the Database. In its report, the FCC writes that the “Commission staff have made significant progress toward making the Database operational since the Commission authorized its creation in December 2018.” The FCC also notes that is has “awarded a contract to SomosGov, Inc. to develop the Database,” and “anticipate[s] the Database may be operational as early as June 2021.”
December 8, 2020 – FCC Issues NPRM on Streamlined Methods for Reporting Robocall Violations
In this NPRM, the FCC proposes rules and invites public comment on the TRACED Act’s mandate that the Commission streamline “the ways in which a private entity may voluntarily share with the Commission information relating to” calls or text messages that violate the law’s regulations regarding robocalls and caller ID spoofing.
December 22, 2020 – FCC Issues Best Practices for Caller ID Authentications
The FCC issued “best practices that providers of voice service may adopt as part of their implementation of effective call authentication frameworks to ensure that the calling party on a voice call is accurately identified.” It is notable that these best practices are voluntary and apply only to calls to wireline phones.
December 30, 2020 – FCC Releases Report and Order on TCPA Exemptions
The FCC released a Report and Order modifying the requirements for certain exemptions to the TCPA. These modifications follow a review of those exemptions first announced in the October 1 NPRM as a part of the FCC’s efforts to fulfill Section 8 of the TRACED Act. The main thrust of all of these modifications is that they impose limits on the number of calls that can be placed in certain spans of time in order for the caller to make use of the protections afforded by the exemptions. This Report and Order meets the TRACED Act’s one year deadline for completing the review of the exemptions.
December 30, 2020 – FCC Releases Report and Order on Call Blocking
On the same day, the FCC also released a Fourth Report and Order focusing specifically on call blocking rules, safe harbors for telecom carriers, and redress for callers whose calls are wrongly blocked. In the Order, the FCC requires “voice service providers to meet certain affirmative obligations and to better police their networks against illegal calls.” It also expands the “existing call blocking safe harbor to cover network-based blocking of certain calls that are highly likely to be illegal.” Finally, it adopts “rules to provide greater transparency and ensure that both callers and consumers can better identify blocked calls and ensure those that are wanted are un-blocked.”
As this timeline demonstrates, the FCC, FTC, DOJ, and other government entities have made consistent progress in implementing the TRACED Act in the year since it was signed into law. These implementation efforts will continue into next year and beyond, with the law inching ever closer to being fully operational. We will continue to cover these efforts and report on any significant updates with regards to the TRACED Act.
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