On October 24, 2023, the Subcommittee on Communications, Media and Broadband, held a hearing titled "Protecting Americans from Robocalls." The Senators from the Subcommittee questioned business representatives and consumers alike concerning the impact of receiving unwanted telemarketing calls. It was made clear at the hearing that the Federal Communications Commission ("FCC") and the Department of Justice ("DOJ") could do more to stop robocalls and resulting Telephone Consumer Protection Act ("TCPA") litigation. Readers should note that the word "robocall" does not have a well-settled regulatory definition, with some considering it to mean prerecorded, autodialed calls, while others deeming it to encompass all unsolicited telemarketing calls. Notwithstanding the foregoing, the Subcommittee has determined that more should be done to address the receipt of robocalls, and will vote next month on whether to expand regulation to include calls/texts facilitated through the use of artificial intelligence technologies ("AI").
Consistent with the focus on AI, Senator Ben Ray Luján, Subcommittee chair, aired a new concern at the hearing, namely that "[a]utomated bots and other artificial intelligence systems are using public data to consent on behalf of a consumer for calls they never asked for and do not want."
What Can the DOJ Do?
Following questioning of consumers at the hearing, the general consensus was that the DOJ should be prioritizing prosecutions involving robocalls and unwanted telemarketing. Megan Brown, a telecommunications lawyer from the U.S. Chamber of Commerce, testified that she believes Congress should urge the DOJ to be more aggressive with its enforcement in this field.
How Can the FCC Address Continued TCPA Litigation?
Margot Saunders, Senior Counsel for the National Consumer Law Center, did not hold back when expressing her feelings concerning the FCC. Saunders proposed that the "magic bullet" needed to finally reduce the number of telemarketing calls, is for the FCC to adopt a system which "quickly suspends the ability of a voice service provider to participate in the network once that provider is determined to be a repeat offender." Senator Ben Ray Luján, agreed, noting that the FCC's enforcement authority is "ineffective," and that the agency should be given more power by Congress.
There are currently two proposed policy changes that the FCC feels will help stem the tide of TCPA litigation. First, the FCC has requested that Congress broaden the TCPA's definition of "automatic telephone dialing system." The FCC feels that the current definition does not easily allow it to regulate bad actors, especially when it comes to unwanted text messages.
Second, the FCC wants Congress to grant it the authority to collect fines. Currently, while the FCC has the authority to issue Forfeiture Orders for violations, it does not have authority to pursue collection without the assistance of the DOJ.
The Telemarketing Industry Asks: What's Next?
At this month's hearing, the FCC explained that it had already started to ramp up its attention to unsolicited telemarketing practices. In fact, as readers of this blog know, back in July 2023, the FCC announced a major crackdown on the lead generation and telemarketing space. More time is needed to see what the impact of this crackdown will be and whether it will reduce the number of TCPA lawsuits.
Another concern mentioned during this month's hearing was the fact that as technology continues to evolve, specifically with respect to AI, more TCPA litigation and robocalls will likely ensue. The Subcommittee focused on whether current telemarketing statutes as written, will be effective in addressing the increased use of AI. Specifically, can the FCC adequately regulate telemarketing calls that utilize AI within its statutory authority under the TCPA?
As the telemarketing industry remains in the regulatory crosshairs, it is more important than ever for businesses to comply with evolving regulations. The best way to do so is to retain experienced telemarketing attorneys.
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