U.S. Rep. Frank Pallone (D. N.J.), who, along with Senator John Thune (R. S.D.), previously introduced and spearheaded passage of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (TRACED Act) in the House of Representatives, recently introduced the “Do Not Disturb Act,” a comprehensive bill seeking to expand the current statutory definition of “robocalls” to include AI voice calls, calls to “stored telephone numbers,” and texts, as well as to require disclosure of AI use in telemarketing calls and impose other obligations on VoIP service providers.
The bill seeks to “close a perceived loophole” created by the 2021 Facebook, Inc. v. Duguid Supreme Court case, which found that, to qualify as an autodialing technology under the Telephone Consumer Protection Act (TCPA), the system must either “store a telephone number using a random or sequential number generator; or produce a telephone number using a random or sequential number generator.” According to Rep. Pallone, such a reading improperly narrowed the definition of auto-dialing technology, excluding the bulk of robocalls taking place today from consumer protections included in the TCPA.
Proposed legislation aims to expand the scope of what constitutes robocalls and adapt consumer protection laws to the evolving voice call and text message technology and related market developments. Below are some of the most consequential provisions of the new bill.
- New Definition: Robocall
The bill seeks to replace the current definition of an “automatic telephone dialing system” in the TCPA with a new definition of a “robocall,” which in the current draft means:
a call made or text message sent—
(i) using equipment, whether hardware, software, or a combination thereof and including an automatic telephone dialing system, that makes a call or sends a text message to—
(I) stored telephone numbers; or
(II) telephone numbers produced using a random or sequential number generator; or
(ii) using an artificial or prerecorded voice or an artificially generated message.
The term “robocall” would not include a call made or text message sent using equipment that requires substantial human intervention to make or send the call or text message. It is yet unclear what the criteria for that would be.
In line with the addition of texts to the definition of “robocalls,” the bill also extends the authority of the Federal Trade Commission (FTC) under the Telemarketing and Consumer Fraud and Abuse Prevention Act to include text messages.
- New Requirements for VOIP Service Providers
The bill directs the FCC to adopt rules that require certain actions of and impose certain liabilities on Voice over Internet Protocol (VoIP) providers.
- Under these rules, VoIP providers would have to verify the identity of each customer and proactively monitor and analyze traffic to determine if robocalls are being made. If a VoIP provider finds through this analysis that a customer is engaging in the pattern or practice of making robocalls, the provider would be required to conduct an investigation to determine if a violation is being committed. If the provider finds evidence of violations, they would be required to take affirmative and effective measures to mitigate the origination and transmission of these robocalls and submit a public report of the investigation and evidence to the FCC’s Robocall Mitigation Database.
- Additionally, the regulations would impose liability on individual company owners, directors, officers, and principals of a VoIP provider if they fail to comply with the regulations or knew or should have known that the service was being used to facilitate illegal robocalls. The regulations would also establish a process to temporarily suspend providers of covered VoIP services from the Robocall Mitigation Database and, and as a result, experience their traffic blocked by downstream and intermediate providers. Mandatory RMD delisting and call blocking would occur if the provider fails to respond to notice by the FCC of suspected illegal traffic while a final determination of whether to remove the provider from the database is pending.
3. Consumer Disclosure Required for AI-Powered Robocalls
Entities using AI to emulate a human being in a robocall would have to disclose that fact at the beginning of a robocall.
- Doubled Penalties for AI-Powered Robocalls (Deepfakes)
If passed, the bill would double the maximum forfeiture penalty or criminal fine for violations of the TCPA where artificial intelligence is used to impersonate an individual or entity (via voice OR text) with the intent to defraud, cause harm, or wrongfully obtain anything of value.
- VSPs to Be Required to Offer Free Robocall-Blocking Service to Customer
The bill directs the FCC to pass rules to require interconnected VoIP service providers and carriers to offer robocall-blocking service to each customer at no additional charge. This service must give customers the ability to block robocalls that are highly likely to be illegal.
The bill’s official summary is available here. While passage by the current Congress may not occur, voice service providers need to be prepared for much stricter requirements and may wish to contact their representatives in Congress to express any concerns about the proposed changes in the law.
If you have any questions about the implications of this bill for your telemarketing practices or your company’s broader telemarketing obligations under the applicable law and WANT YOUR VOICE TO BE HEARD,
PLEASE CONTACT US NOW, WE ARE STANDING BY TO GUIDE YOUR COMPANY’S COMPLIANCE EFFORTS
The CommLaw Group’s wealth of specialized telecommunications law expertise, “inside the beltway” location, ability to see strategic implications of proposed rulemaking, and advocacy experience enable our clients’ voices to be heard! If you have any questions on this new development.
Jonathan S. Marashlian – Tel: 703-714-1313 / E-mail: jsm@CommLawGroup.com
Michael Donahue — Tel: 703-714-1319 / E-mail: mpd@CommLawGroup.com
Robert H. Jackson – (703) 714-1316 / E-mail: rhj@commlawgroup.com
Linda McReynolds – Tel: 703-714-1318 / E-mail: lgm@CommLawGroup.com
Diana Bikbaeva – Tel: 703-663-6757 / E-mail: dab@CommLawGroup.com
