Last Friday, the Federal Communications Commission (“FCC”) took the next step in cracking down on illicit robocalls by releasing an order (“Order”) adopting rules implementing Section 3 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, better known as the TRACED Act. The FCC did so without providing for public notice and comment, invoking the Administrative Procedure Act’s “good cause” exception. The new rules take effect 30 days after publication in the Federal Register.
The TRACED Act aims to restore public trust in answering calls from unknown telephone numbers by giving the FCC the power to pursue bad actors who, among other things, tamper with caller ID information or impersonate government agents to defraud consumers. As we explained in a prior advisory, at the heart of the efforts to enforce the TRACED Act lies the end-to-end call authentication technology known as STIR/SHAKEN, which uses digital certificates to check if calls have been spoofed.
The adopted rules specifically implement the following changes:
- Citation Requirement Eliminated – The FCC will no longer be required to warn a first-time violator of Section 227(b) of the Communications Act “if that person or entity does not hold any license, permit, certificate, or other authorization issued by the Commission, or is not an applicant for any license, permit, certificate, or other authorization issued by the Commission,” before imposing a fine on the violator. Section 227(b) restricts calls using an automatic telephone dialing system or an artificial or prerecorded voice unless the called party consents.
- Increased Fines for Intentional Violations – In addition to the forfeiture penalty authorized by Section 503(b) of the Communications Act, the FCC may now fine bad actors up to $10,000 per unlawful intentional robocall. Since most robocallers target a large number of consumers, these penalties can add up very quickly.
- Extending Statute of Limitations for Intentional Violations – The adopted rules extend the statute of limitations for initiating enforcement proceedings against intentional violators of Sections 227(b) and 227(e) of the Communications Act to four years. Section 227(e) prohibits knowingly transmitting misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value. The Order points out that the extension will give the FCC more time to prosecute bad actors.