As abusive robocalls remain unpopular both politically and, in general, universally among the American people, lawmakers have once again thrown out the opening salvo in efforts to legislate against them this week with the “Do Not Disturb Act.” Unfortunately, these efforts appear to be broadly targeting all calls, including those you may want to receive from your credit union alerting you to fraud, a package delivery person or utility service providers among many other callers, with must-know business-related information.
Previously, Ranking Member Frank Pallone, Jr. (D-NJ) issued a statement, “denouncing the ongoing epidemic of abusive robocalls practices,” which he says have been exacerbated by the Supreme Court’s ruling in Facebook, Inc. v. Duguid, which interpreted the Telephone Consumer Protection Act’s (TCPA) definition of an Automated Telephone Dialing System (ATDS). The Supreme Court, in 2021, found that to qualify as an ATDS under the TCPA, a device must have the capacity to either: Store a telephone number using a random or sequential number generator, or produce a telephone number using a random or sequential number generator. In other words, equipment that can store or dial telephone numbers without using a random or sequential number generator does not qualify as an ATDS under the TCPA post Facebook. Federal Communications Commission Chairwoman Jessica Rosenworcel has also publicly come out in support of efforts to roll back the Facebook decision and broaden the definition of an ATDS, once again.
Following this, on Jan. 29, a bipartisan group of lawmakers introduced legislation to strengthen prohibitions on telemarketing calls and to address how artificial intelligence is increasingly being used to impersonate individuals and to conduct such calls. The package is being led by House Energy and Commerce Committee Ranking Member Frank Pallone (D-NJ), who introduced the Do Not Disturb Act, which contains provisions offered by Reps. Eric Sorenson (D-IL), Juan Ciscomani (R-AZ), Jan Schakowsky (D-IL) and Darren Soto (D-FL).
The Do Not Disturb Act revises the TCPA and expands the Federal Communications Commission’s (FCC) enforcement authority in the following ways:
Update and Expand Anti-Robocall Protections
The bill replaces the definition of ATDS in the TCPA with the new term “robocall,” which substantially expands the TCPA’s coverage to include most technologies that involve automated calling or texting. The term “robocall” includes calls and text messages that are sent: 1) using equipment that makes calls or sends text messages to stored telephone numbers or telephone numbers generated by a random or sequential number generator, or 2) using an artificial or prerecorded voice, or an artificially generated message. It does not include calls and text messages sent using equipment that requires substantial human intervention. Robocalls made or sent without the requisite consent of the consumer would violate the TCPA and subject callers to litigation.
AI Disclosure Requirements
The bill incorporates the Quashing Unwanted and Interruptive Electronic Telecommunications (QUIET) Act introduced by Reps. Eric Sorenson (D-IL) and Juan Ciscomani (R-AZ), and the Restrictions on Utilizing Realistic Electronic Artificial Language (R U REAL) Act introduced by Rep. Jan Schakowsky (D-IL). The QUIET Act builds on the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act of 2019 by doubling the penalty for violators who use artificial intelligence (AI) to impersonate individuals or entities with the intent to defraud, cause harm or wrongfully obtain anything of value. It would require a disclosure at the beginning of an AI-generated call or text if AI is being used. The R U REAL Act directs the FTC to amend the Telemarketing Sales Rule to require a disclosure at the beginning of a telemarketing call or text message if AI is being used. The bill doubles the penalty for violations of robocall impersonation rules.
Robocall Blocking
Additionally, the bill would implement the Roboblock Act, introduced by Rep. Darren Soto (D-IL). This bill instructs the FCC to promulgate regulations requiring voice service providers to offer robocall detection and blocking services to every customer at no additional charge.
Requirements for VoIP Providers
The bill would impose obligations on Voice over Internet Protocol (VoIP) providers to identify their customers, monitor their traffic and subject owners and officers to liability for failing to prevent calls or texts that violate the TPCA from using their networks.
Inbound Calls
The bill would direct the Federal Trade Commission FTC) to issue regulations imposing the requirements of the Telemarketing Sales Rules (TSR) on inbound calls. The TSR currently only applies to outbound calls.
Recent FCC Actions
The legislation comes as the FCC is preparing to step up its enforcement activity surrounding robocalls. It also has several pending issues it is considering that relate to consent, as well as call blocking and labeling. Additionally, in November, the FCC initiated an inquiry into AI’s impact on robocalls and robotexts, and requested comments be submitted by Jan. 16. The FCC and FTC are also coordinating on efforts to significantly reduce the number of international robocalls. Finally, on Jan. 31, FCC Chair Rosenworcel proposed the FCC use its existing authority under the TCPA to prohibit AI voice-generated robocalls.
The 9-0 Facebook decision from the Supreme Court was an important development for a host of businesses making informational calls. It has also decreased class action litigation under the TCPA. Reversing Facebook in conjunction with proposals related to use of AI for robocalls in this legislation could lead to some sweeping changes for many businesses. While it is unlikely that a majority of Republicans would accept everything proposed in the Do Not Disturb Act, constituents continue to urge lawmakers on both sides of the aisle to address robocalls. The TRACED Act, which previously sought to address similar concerns, passed with overwhelming margins. Thus, it is important for interested parties to have a seat at the table as discussions about any potential legislation unfolds in this area, particularly for industries that face abusive TCPA-related litigation.
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