Yesterday, the U.S. Senate Subcommittee on Consumer Protection, Product Safety and Insurance held a hearing entitled, “Stopping Fraudulent Robocall Scams: Can More Be Done?”   The hearing takes place two weeks after the FTC celebrated the ten-year anniversary of the its implementation of the Do Not Call Registry and on the heels of the FTC’s recent announcement that Mortgage Investors Corporation has agreed to pay $7.5 million (the largest Do Not Call fine the FTC has ever collected) to resolve FTC allegations that it violated provisions of the FTC’s Telemarketing Sales Rule (TSR).  The Federal Communications Commission, which has authority under the Telephone Consumer Protection Act of 1991 (TCPA) to regulate prerecorded and auto-dialed calls, shares jurisdiction with the FTC over so-called robocallers.

Witnesses from both agencies participated in the hearing and highlighted their respective enforcement efforts.    Lois Greisman, Associate Director, Division of Marketing Practices, Bureau of Consumer Protection, FTC, noted that there have been 105 FTC enforcement actions since the Commission began enforcement of the Do Not Call provisions.  Eric Bash, Associate Bureau Chief, Enforcement Bureau, FCC, noted that the FCC has issued more than 500 citations for robocall violations pursuant to its authority under the TCPA.  Mr. Bash’s written testimony describes the FCC’s enforcement authority:

In this day and age of heavy mobile phone use, it may be worth repeating that the FCC’s rules flatly prohibit all autodialed or prerecorded calls to mobile phones made for a non-emergency purpose without the called party’s permission. It does not matter whether the call is to persuade the called party to buy some thing or to support some cause. And, despite common mischaracterizations of the law, it does not matter whether the called party is charged for the call, or whether the content of a message is blasted by text or voice. (The FCC has been clear that “autodialed” text messages fit within the restriction.)

The applicability of the FCC’s rules to text messages has been the source of a significant volume of litigation.

Mr. Bash urged Congress to give the FCC the authority to pursue robocall violators without having to issues citations, expand the statute of limitations from one year to two, extend robocall prohibitions outside of U.S. jurisdiction, and give the FCC authority over third-party spoofing providers. 

Ms. Greisman stated that changes in technology have led to new sources of frustration, including the blasting of prerecorded messages using Voice over Internet Protocol (VoIP) technology.  According to Ms. Greisman, it is easier for bad actors to “spoof” their identifying information when a call travels as data rather over traditional telephony infrastructure.   Ms. Greisman noted that the FTC is working with members of the public to develop technological solutions to these challenges.