Can Robocalls Be Stopped? | The Regulatory Evaluate

Scientists propose solutions for endless robocalling.

Are you getting threatening calls about your car’s expiring warranty, even if you don’t own a vehicle? Or maybe vaguely worded voicemails alerting you to an alleged debt that you must pay immediately?

Telemarketing – unwanted calls or voicemails selling a product or service – is not a new phenomenon. Telemarketing activities flourished in the early 1980s when technology allowed companies to call more consumers at a lower cost. Recorded messages – also known as robocalls – can reach thousands of phones simultaneously. Companies invested in telemarketing and found it to be a productive way to increase sales. Over the next decade, the telemarketing industry grew almost tenfold.

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to curb the flow of unsolicited calls to consumers. The problem had gotten so bad that former Senator Ernest Hollings (DS.C.), one of the sponsors of the TCPA, called robocalls the “scourge of modern civilization”.

Under the TCPA, the penalty for each robocall is $ 500 per call but can increase to $ 1,500 per call if petitioners can demonstrate in court that the robocallers “intentionally or knowingly violated” the TCPA.

The TCPA, however, was far from the robocall’s fatal blow. In yet another attempt to block unwanted calls, the Federal Communications Commission (FCC) teamed up with the Federal Trade Commission (FTC) in 2003 to establish the national registry for unsolicited calls. The National No-Call Register now managed by the FTC allows consumers to add their phone numbers to a national database that states that these numbers are theoretically banned from certain types of unwanted calls.

Robocalling has also increased with the TCPA and the National Do-Not-Call Registry. Americans received over 100 billion robocalls in 2019, with the average consumer receiving one unwanted call almost every day.

To counter the seemingly unrestricted growth of robocalling, Congress passed the Law Enforcement and Deterrence of Robocall Phone Abuse (TRACED Act) in 2019. The TRACED bill, among other things, increased penalties under the TCPA, gave the FCC more authority to enforce the TCPA, and called on the FCC and the US Department of Justice to work together to develop better methods of combating robocalls.

In this week’s Saturday seminar, scientists will discuss telemarketing, robocalls and the future of TCPA.

  • In an article in the Brooklyn Law Review, Justin (Gus) Hurwitz of the Nebraska College of Law states that TCPA prohibits robocalls without the recipient’s “prior express consent”. Hurwitz writes that while the TCPA faced challenges for the sake of the first amendment, the US Supreme Court has upheld the law, which is based on precedents establishing sanctity and the special right to privacy in the home. However, Hurwitz explains that the TCPA effectively extends the special protection of houses to public spaces, as cell phones are the main recipients of robocalls today. Given this shift to mobile devices, Hurwitz argues that the TCPA no longer passes the constitutional review. Instead, he recommends that regulators encourage the development of technologies that allow consumers to control their incoming calls.
  • In an article in The Atlantic, Garrett Epps of the University of Baltimore Barr v American Association of Political Consultants discusses a 2020 Supreme Court case that is considering outsourcing within the TCPA for certain debt collection requests. Epps explains that the TCPA’s approach of only banning some language categories and allowing others, such as the speech about debt collection, may violate the first change. At the same time, Epps argues that the court is unlikely to knock down the popular TCPA. Finally, in Barr, the Court ruled that while the collection exception violated the first amendment, the exception was separable from the rest of the TCPA.
  • The Supreme Court heard a second appeal of the TCPA against Duguid on Facebook in 2020. In an analysis on SCOTUSblog, Amanda Shanor of the Wharton School at the University of Pennsylvania predicts the court’s ruling may revolve around the grammar of a TCPA provision suggesting that the regulated storage and production of phone numbers requires the use of a Could include random or sequence number generator ”- the method used by robocallers. Either way, Shanor writes, the court’s decision – expected by June 2021 – should “have a huge impact on the future of marketing and cell phone spam.”
  • In an article in the Journal of Law, Technology and Policy, California State University Northridge’s Stuart L. Pardau argues that plaintiffs have exploited ambiguities in the language of the TCPA since the mid-2000s to bring unnecessary lawsuits. He suggests methods to clarify ambiguities in the TCPA, to protect oneself from exploitative lawsuits and “to remain true to the original purposes of the TCPA”. One way, Pardau suggests, is to narrow down the definition of “autodialer” to punish only bad actors – robocallers who knowingly break the TCPA – as opposed to any company that could theoretically abuse technology.
  • Automated agents, so-called “bots”, can communicate like robocalls via platforms such as mobile phones or social media. In a recent UCLA Law Review article, Madeline Lamo of the Reporters’ Committee on Freedom of the Press and Ryan Calo of the University of Washington School of Law warn that overregulation of bot language could raise concerns about the first change. Some experts have suggested passing laws that clearly require bots to identify themselves as non-human speakers. Calo and Lamo argue that bot disclosure laws would constitute forced speech and that enforcing such laws would jeopardize the right to speak anonymously.
  • The TCPA limits political speech, a type of speech that many Americans “value the most,” said Caroline Stephens. In a note published in the Alabama Law Review, Stephens concludes that the TCPA violates the first amendment as it applies to robocalls conducted through political campaigns and polls. She writes that the government must have an overriding interest – a high bar – to curtail political speech. Stephens contends that the government’s interest in protecting individuals’ right to privacy is not compelling enough to warrant a ban on political robocalls, especially as most actors use cell phones rather than landlines at home, which creates greater privacy concerns brings with it. She also suggests that alternatives to TCPA could protect privacy interests without raising concerns about the first change. For example, Stephens argues that the government could time-limit robocalls or allow individuals to decline certain calls instead of banning political robocalls across the board.

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