Pressure Builds to Update 1991 Law to Combat Robocalls

Eshoo says phone scammers aren't punished sufficiently. (Rob Kunzig/Morning Consult)

A chorus of House Democrats and Republicans are calling for an update to a 1991 law to better protect consumers from targeted robocalls from marketers and scammers.

Lawmakers from both parties agree it’s time to upgrade the 25-year-old Telephone Consumer Protection Act to reflect technological advances made in that time, particularly mobile phones. But representatives from the health care industry and small businesses made the case Thursday that the law already hampers their good faith efforts to reach their customers.

Robocalls rank as the top consumer complaint at the Federal Communications Commission, according to the agency’s chairman. Various members of the House Energy and Commerce Communications and Technology Subcommittee recounted their own experiences hearing from constituents at a hearing on the matter.

California Rep. Anna Eshoo, the top Democrat on the subcommittee, said she hears “consistently” from her constituents about the “need to put an end to unwanted phone calls.”

The full committee’s chairman, Rep. Fred Upton (R-Mich.), said he also has heard from many of his constituents on the topic of “pesky” robocalls, noting that the FCC and experts from the private sector are “all in agreement that it is time to bring this outdated law into the 21st century.”

Upton also argued that the number of lawsuits targeting “good actors” has come as a result of recent reform efforts at the FCC. But he acknowledged that the number of “bad actors” who are intentionally breaking the law is increasing.

Eshoo said the intentional violations of the 1991 law aren’t always sufficiently punished, which she said is “a great source of frustration to people.”

“We’ve come to a time and place in our country where people break the law and then they settle with the regulators and no one is punished really, for anything,” Eshoo said. “I don’t think it’s fair.”

Part of the issue is that the “bad actors” have grown more sophisticated over the past 20 years. Fraudulent scam calls, such as those attempting to dupe Americans into thinking they are receiving calls from the Internal Revenue Service, are disguised cleverly.

Seniors are particularly susceptible to calls from scammers pretending to be IRS officials or other money collectors.

The industry is currently working on ways to solve the problem. In August, 32 telecom companies, phone makers and tech firms joined an effort spearheaded by AT&T Inc. to develop standards and processes to fight marketing and fraudulent robocalls.

Apple Inc., Google Inc. and Verizon Communications Inc. are all part of the “Robocall Strike Force” that have been instructed to report back to the FCC by Oct. 19 with “concrete plans” of how best to control the frequency of robocalls and what the government should do to help.

Richard Shockey, a former member of the FCC’s Communications Security Reliability and Interoperability Council, said engineers are working on a way of verifying calls through a checkmark system, similar to Twitter, to ensure consumers know exactly who is calling.

Shockey told the subcommittee that fighting fraudulent calls should use “modern and cryptographic technologies” to provide caller IDs. The data coming from the call’s origins should provide more information to the consumer on the receiving end.

Customers could see “things like a green check box which would mean this call has been validated, a big red check box that says no this is not really the IRS involved,” he said.

“We have the standard now pretty much ready to go. All they need is testing,” Shockey said. But, he added, engineers must be careful not to damage the security systems already in place.

FCC Chairman Tom Wheeler warned in August that if the private sector can’t fix the problem on its own, regulators might have to step in. “Without results, we will be forced to look for other solutions, because this scourge must stop,” Wheeler said at the launch of the industry task force.

A collection of six advocacy groups wrote to the leaders of the subcommittee Wednesday to express “strong support… in improving protections against unwanted robocalls.” The groups also warned against changing the law to alter the definitions of “autodialer” and “consent” that could create loopholes for marketers.

But Michelle Turano, vice president of government affairs for the health provider WellCare, told the committee that the FCC’s interpretation of the 1991 law ignores the fact that the Health Insurance Portability and Accountability Act already imposes strong regulations on private information.

She argued the way the agency interprets the law “has had a chilling effect” on how health care providers can conduct outreach to members when calling about blood tests, prescription information, and reminders to receive preventative screenings.

“Recent interpretations of the TCPA could be read to provide that companies that provide health care cannot conduct automated outreach to a cell phone to deliver a health care message unless the calling party can also prove prior express consent, a requirement that the HIIPA privacy rule expressly does not require,” Turano said.

They can call a landline or send mail, but can’t text or call a cell phone with that interpretation, she said.

Morning Consult