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Calendar No. 94
116th Congress } { REPORT
SENATE
1st Session } { 116-41
_______________________________________________________________________
TELEPHONE ROBOCALL ABUSE CRIMINAL ENFORCEMENT AND DETERRENCE ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 151
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 21, 2019.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2019
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
One Hundred Sixteenth Congress
first session
ROGER F. WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington
ROY BLUNT, Missouri AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TOM UDALL, New Mexico
CORY GARDNER, Colorado GARY C. PETERS, Michigan
MARSHA BLACKBURN, Tennessee TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
MIKE LEE, Utah JON TESTER, Montana
RON JOHNSON, Wisconsin KYRSTEN SINEMA, Arizona
TODD C. YOUNG, Indiana JACKY ROSEN, Nevada
RICK SCOTT, Florida
John Keast, Staff Director
David Strickland, Minority Staff Director
Calendar No. 94
116th Congress } { Report
SENATE
1st Session } { 116-41
======================================================================
TELEPHONE ROBOCALL ABUSE CRIMINAL ENFORCEMENT AND DETERRENCE ACT
_______
May 21, 2019.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 151]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred (S. 151) to deter criminal robocall
violations and improve enforcement of section 227(b) of the
Communications Act of 1934, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill, as amended, do pass.
Purpose of the Bill
The purpose of S. 151, the Telephone Robocall Abuse
Criminal Enforcement and Deterrence (TRACED) Act, is to aid the
American public by helping to reduce illegal and unwanted
robocalls by improving the ability of the Federal
Communications Commission (FCC or Commission) and law
enforcement to impose additional penalties for intentional
violations of the Telephone Consumer Protection Act (TCPA). The
bill also improves adoption of technical solutions for blocking
illegal robocalls, and convenes a Federal interagency working
group to combat the dramatic rise in such calls.
Background and Needs
Unsolicited robocalls are among the top consumer complaints
to the FCC, the Federal Trade Commission (FTC), and many State
attorneys general.\1\ Although the FCC and FTC are tasked with
fighting these calls,\2\ available data indicate that robocalls
are likely to increase and continue to be a major concern for
consumers.\3\ A large number of these illegal robocalls are
spoofed calls, which are typically scams.\4\ It is estimated
that in 2019, nearly 50 percent of all calls to mobile phones
will be scam robocalls.\5\ Another report estimates that
robocalls rang Americans' phones almost 5 billion times in
April 2019--that is close to 2,000 calls per second.\6\
Furthermore, this growing trend of unwanted robocalls extends
to ringless voicemail (also known as direct to voicemail
calls).\7\ Recent court decisions have found such messages to
be subject to TCPA.\8\ Illegal and abusive robocalls are a
clear problem.
---------------------------------------------------------------------------
\1\See Tony Romm, ``Robo-callers rang Americans' phones 26 billion
times last year. Now, Congress is taking aim.'' The Washington Post,
April 2, 2019 (https://www.washingtonpost.com/technology/2019/04/02/
robo-callers-rang-americans-phones-billion-times-last-year-now-
congress-is-taking-aim/?utm_term=.1b634c1c65bb); Bill Moak, ``Stop
calling! Unwanted robocalls reaching epidemic proportions. States
getting involved.'' The Clarion Ledger, March 11, 2019 (https://
www.clarionledger.com/story/news/2019/03/11/robocalls-ftc-mississippi-
cracking-down/3090094002/); Andy Rosen, ``Congress is taking new steps
to stop robocall scammers,'' The Boston Globe, November 26, 2018,
(https://www.bostonglobe.com/business/2018/11/25/congress-make-take-
new-steps-stop-robocall-scammers/8Ca0oLNAbHOooDoQo6soII/story.html);
Tara Siegel Bernard, ``Yes, It's Bad. Robocalls, and Their Scams, Are
Surging.'' The New York Times, May 6, 2018 (https://www.nytimes.com/
2018/05/06/your-money/robocalls-rise-illegal.html); ``Illegal
Robocalls: Calling All to Stop the Scourge,'' hearing before the
Subcommittee on Communications, Technology, Innovation, and the
Internet of the Senate Committee on Commerce, Science, and
Transportation, 116th Congress (2019) (testimony of Hon. Doug Peterson,
Attorney General of Nebraska) (https://www.commerce.senate.gov/public/
_cache/files/e57e0488-3705-44d5-8e45-63bd7043cd25/
910F8B485BD5D8CE241D28BA1DEAF7AA.04-11-19peterson-testimony.pdf)
(Peterson testimony); see also Report on Robocalls, CG Docket No. 17-
59, Federal Communications Commission (February 2019) (FCC Report)
(https://docs.fcc.gov/public/attachments/DOC-356196A1.pdf).
\2\See, e.g., the Telephone Consumer Protection Act, 47 U.S.C. 227
(TCPA); Do Not Call Implementation Act, 15 U.S.C. 6101.
\3\FCC report at 4-6 (``Youmail shows the estimated national volume
of robocalls increasing from 29,082,325,500 in 2016 to 30,507,422,900
in 2017, and to 47,839,232,200 in 2018.'').
\4\Susan Tompor, ``Social Security calling? Nope, it's scammers out
to grab your cash,'' The Seattle Times, December 15, 2018 (https://
www.seattletimes.com/business/social-security-calling-nope-its-
scammers-out-to-grab-your-cash/).
\5\Press release, First Orion, ``Nearly 50% of U.S. Mobile Traffic
Will Be Scam Calls by 2019'' (September 12, 2018) (https://
firstorion.com/nearly-50-of-u-s-mobile-traffic-will-be-scam-calls-by-
2019/).
\6\April 2019 Nationwide Robocall Data, YouMail (https://
robocallindex.com/).
\7\See Josh Saul, ``Can Annoying Robocall Voicemails Be Stopped?
Attorneys General, Angry Phone Owners Argue Against New Marketing
Tactic,'' Newsweek, June 5, 2017 (https://www.newsweek.com/voiceless-
messages-robocall-fight-attorneys-general-fcc-comments-621055).
\8\See, e.g., Saunders v. Dyck O'Neal, Inc., 319 F. Supp. 3d 907
(W.D. Mich. 2018) (concluding ringless voicemails are subject to the
TCPA at the motion for summary judgement phase); see also Schaevitz v.
Braman Hyundai, Inc., Case No. 1:17-cv-23890-KMM, 2019 U.S. Dist. LEXIS
48906 (S.D. Fl. March 25, 2019) (holding that ringless voicemail is
subject to TCPA as a matter of law.).
---------------------------------------------------------------------------
Consumers today are increasingly plagued by illegal robotic
or prerecorded messages. Certain prerecorded messages are
restricted under section 227, unless they fall within one of
the established exceptions such as consent or an emergency
purpose. The legislation provides the Commission flexibility to
adopt rules and take enforcement action to combat unlawful
calls and texts, whether they use existing technologies or
technologies that may emerge in the future. The legislation is
designed to provide an agile tool that can be used to combat
robocalling abuses as technologies and methodologies of
transmitting these pernicious calls evolve.
But not all robocalls are illegal or unwanted. The majority
of companies who use robocalls are legitimate companies.\9\ And
valid robocalls can benefit consumers. Many important services
are carried out via robocalls when institutions and call
recipients have established a prior relationship: pharmacies
provide updates to consumers that a prescription is ready for
pick up; school closing announcements provide families with
important and timely information; banks provide customers with
fraud alerts, data security breaches, and even calls to convey
measures consumers may take to prevent identity theft following
a breach;\10\ auto manufacturers can warn vehicle owners of
urgent safety recalls. These legitimate calls can have life or
death consequences for the intended recipient. But, as the FCC
has noted, ``[t]he same characteristics that make [legitimate]
robocalls appealing to businesses also make them appealing to
scammers. Those seeking to defraud consumers can do so
efficiently and cost-effectively using robocalls, maximizing
their ill-gotten gains.''\11\ Unwanted or illegal robocalls
threaten this critical communication when frustrated
recipients, fearing unwanted or illegal robocalls, are hesitant
to answer their phones.\12\
---------------------------------------------------------------------------
\9\Patricia Moloney Figliola, ``Protecting Consumers and Businesses
from Fraudulent Robocalls,'' Congressional Research Service (December
21, 2018) (https://www.crs.gov/reports/pdf/R45070).
\10\``Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991,'' Declaratory Ruling and Order, 30 FCC Rcd.
7961 (2015).
\11\FCC report at 4.
\12\Tara Siegel Bernard, ``Yes, It's Bad. Robocalls, and Their
Scams, Are Surging,'' The New York Times, May 6, 2018 (https://
www.nytimes.com/2018/05/06/your-money/robocalls-rise-
illegal.html) (noting that a surgeon failed to respond to a phone call
from an emergency room believing it to be a robocall, which caused the
surgeon to lose valuable time in responding to the injured individual).
---------------------------------------------------------------------------
Illegal robocallers often pose as legitimate businesses or
government entities to trick individuals. For example, callers
can fake their Caller ID to suggest the call originates from
the Internal Revenue Service, a bank, or a local utility.\13\
Often these calls threaten that some form of legal or financial
jeopardy will result if the recipient does not follow
instructions.\14\ Faking or falsifying the Caller ID is known
as ``spoofing.'' A number is ``spoofed'' when the Caller ID
information is manipulated or altered to display anything other
than the originating telephone number.\15\ ``Spoofing'' is
illegal if done ``with the intent to defraud, cause harm, or
wrongfully obtain anything of value.''\16\ In some instances,
``spoofing'' is used legitimately to protect the caller or show
affiliation with a specific entity. For example, a battered
women's shelter might disguise its telephone number to protect
the shelter's true number, which could be tracked and used to
locate the center. A doctor calling patients from her cellphone
may ``spoof'' her office number to help her patients know who
is calling and to avoid giving out personal contact
information.\17\ But, despite these examples, as technology has
progressed, it has allowed malicious and illegal robocallers to
dramatically increase their ability to target consumers.
---------------------------------------------------------------------------
\13\FCC report at 4.
\14\Michelle Singletary, ``Robocalls have these retirees afraid to
answer their phones,'' The Washington Post, March 8, 2019 (https://
www.washingtonpost.com/business/2019/03/08/tech-
support-scams-other-schemes-are-hitting-seniors-hard-costing-millions/
?noredirect=on&utm_
term=.bd10b4d8d833).
\15\See ``Rules and Regulations Implementing the Truth in Caller ID
Act of 2009,'' Report and Order, 26 FCC Rcd 9114, 9115, para. 1 (2011)
(stating that spoofing may also involve manipulating or altering the
caller ID to display a name or other text (i.e., anything other than
the originating number).
\16\Truth in Caller ID Act, 15 U.S.C. 227(e).
\17\Sarah Krouse, ``Stop Robocalling Me!''; ``I Didn't!'', The Wall
Street Journal, January 1, 2019 (https://www.wsj.com/articles/stop-
robocalling-me-i-didnt-11546261200).
---------------------------------------------------------------------------
On June 22, 2017, the FCC issued a Notice of Apparent
Liability (NAL) for Forfeiture finding an individual, Adrian
Abramovich, apparently liable for perpetrating one of the
largest spoofed robocall campaigns that the FCC had ever
investigated.\18\ The NAL asserted that Mr. Abramovich was
responsible for nearly 100 million illegal robocalls during a
3-month period, which equals over 1 million calls each day and
nearly 44,000 such calls each hour.\19\ These calls used
spoofed numbers, appearing on a recipient's Caller ID to
originate from a local number, increasing the odds that the
recipient would find the number familiar or trustworthy. The
robocalls would offer vacations and cruises to Mexico, the
Caribbean, and Florida, and would falsely claim affiliation
with well-known American travel and hospitality companies,
including TripAdvisor, Expedia, Marriott, and Hilton. But
trusting recipients would actually be connected to one of
several unaffiliated travel agencies that had contracted with
Mr. Abramovich to receive calls generated by his network. These
travel agencies worked with Mexico-based call centers engaged
in selling timeshares and vacation packages to Mexican
timeshare facilities.
---------------------------------------------------------------------------
\18\Adrian Abramovich, Marketing Strategy Leaders, Inc., and
Marketing Leaders, Inc., Notice of Apparent Liability for Forfeiture,
FCC 17-80, June 22, 2017 (https://docs.fcc.gov/public/
attachments/FCC-17-80A1.pdf) (NAL).
\19\NAL.
---------------------------------------------------------------------------
In the NAL, the FCC proposed a fine of $120 million against
Mr. Abramovich for apparently violating the Truth in Caller ID
Act of 2009.\20\ The FCC also cited--but did not fine--Mr.
Abramovich for the separate and additional offenses of making
illegal robocalls in violation of the TCPA.\21\ The FCC may not
impose fines on those it does not regulate, like Mr.
Abramovich, for violations of the Communications Act or FCC
rules until a subsequent violation after a citation has been
issued.\22\ As Senator John Thune noted in a recent hearing,
requiring the FCC to issue a warning citation before it can act
against illegal robocallers and the current 1-year statute of
limitations are hampering Federal enforcers from holding bad
actors accountable.\23\ Moreover, the citation requirement
allows malicious robocallers to simply set up shop under a
different corporate name and continue their malfeasance.
---------------------------------------------------------------------------
\20\NAL.
\21\Adrian Abramovich, Marketing Strategy Leaders, Inc., and
Marketing Leaders, Inc., Citation and Order, DA 17-593, June 22, 2017
(https://docs.fcc.gov/public/attachments/DA-17-593A1.pdf).
\22\See 47 U.S.C. 503(b)(5); see also 47 CFR 1.80(a)(5).
\23\``Illegal Robocalls: Calling All to Stop the Scourge,'' hearing
before the Subcommittee on Communications, Technology, Innovation, and
the Internet of the Senate Committee on Commerce, Science, and
Transportation, 116th Congress (2019) (statement of Sen. John Thune,
Chairman, Subcommittee on Communications, Technology, Innovation, and
the Internet) (Thune comments).
---------------------------------------------------------------------------
On October 10, 2017, then-Commerce Committee Chairman Thune
sent a letter to Mr. Abramovich inquiring about his involvement
with a number of companies that have allegedly made millions of
robocalls. On April 18, 2018, the Senate Committee on Commerce,
Science, and Transportation held a hearing on abusive
robocalls, with Mr. Abramovich appearing before the Committee
pursuant to a subpoena.\24\ He spoke to the availability of
software that allows illegal robocallers to make thousands of
automated calls with the click of a button. Mr. Abramovich's
testimony and responses highlight that the current policies in
place are an ineffective deterrent for individuals violating
the law.\25\
---------------------------------------------------------------------------
\24\``Abusive Robocalls and How We Can Stop Them,'' hearing before
the Senate Committee on Commerce, Science, and Transportation, 115th
Congress (2018) (https://www.commerce.senate.gov/public/index.cfm/
hearings?ID=E0EB17D2-A895-40B4-B385-F94EA2716957).
\25\Id.
---------------------------------------------------------------------------
To combat illegal robocalls, stronger penalties are needed.
At the recent Senate Subcommittee on Communications,
Technology, Innovation, and the Internet hearing, ``Illegal
Robocalls: Calling All to Stop the Scourge,'' witnesses
testified on the need for stronger enforcement mechanisms and
the ability for law enforcement to bring criminal
enforcement.\26\ As Senator Thune noted, robocallers view the
risk of getting caught and paying civil fines as a cost of
business.\27\ Nebraska Attorney General Doug Peterson
acknowledged just that, stating that, ``a lot of these
violators probably perceive it that way, as if they're fine to
move on. I think when you bring up criminal penalties that's
when you get their attention.''\28\ Another witness responded,
``[I]ndividuals like that [recidivist robocaller] definitely
need to be targeted through criminal enforcement. The best way
to prevent illegal robocalls is to stop them from ever being
made and the best way to ensure that is to put the people that
are making them behind bars.''\29\
---------------------------------------------------------------------------
\26\Peterson testimony; see also ``Illegal Robocalls: Calling All
to Stop the Scourge,'' hearing before the Subcommittee on
Communications, Technology, Innovation, and the Internet of the Senate
Committee on Commerce, Science, and Transportation, 116th Congress
(2019) (testimony of Kevin Rupy on behalf of USTelecom-The Broadband
Association) (https://www.commerce.senate.gov/public/_cache/files/
855a4376-1552-4331-9b80-60743250490e/
37FA3F42A63B5BA5E8DE1CF0FC983424.04-11-2019rupy-testimony.pdf) (Rupy
testimony).
\27\Thune comments.
\28\Peterson testimony.
\29\Rupy testimony.
---------------------------------------------------------------------------
In addition to stronger enforcement and enhanced civil and
criminal penalties, it is necessary to implement call
authentication technologies to reduce robocalls. As robocallers
often block or spoof Caller ID, the call recipient does not
know the true caller. STIR/SHAKEN, an industry-developed call-
authentication protocol, provides a standards-based means for
an originating provider to assert a calling number's
legitimacy, and provides a means for terminating providers to
verify that the assertion itself is legitimate and trace the
call back to its network entry point. Although some in the
voice services industry have begun implementing this
technology, the TRACED Act would help to ensure the speedy
implementation of these authentication technologies and protect
consumers. The TRACED Act would direct the FCC to require
implementation of the STIR/SHAKEN authentication framework in
the Internet protocol networks of those voice service providers
who do not implement the technologies on their own.
According to the FCC, it faces several enforcement
challenges in investigating illegitimate robocalls. First, many
illegal robocallers are based in foreign countries.\30\ And
although Congress has provided the FCC with jurisdiction over
foreign caller ID spoofers,\31\ the FCC needs cooperation from
foreign governments to effectively enforce anti-robocall
regulations. Thus, the Attorney General working group that
would be required by the TRACED Act specifically calls for
including representatives from the Department of State to aid
in these efforts. The FCC has also stated that the current 1-
year the statute of limitations for violations of TCPA often
does not provide sufficient time for the agency to complete
investigations involving complex robocalling.\32\ The TRACED
Act would increase the statute of limitations for TCPA
violations from 1 year to 3 years for intentional violations,
as discussed below, which would enable the FCC to better pursue
bad actors.
---------------------------------------------------------------------------
\30\FCC report at 14.
\31\Consolidated Appropriations Act, 2018, Public Law 115-141;
section 503.
\32\FCC report at 14.
---------------------------------------------------------------------------
The TRACED Act is designed to respond to the scourge of
illegal robocalls. The legislation would help to substantially
increase the penalties for illegal robocalls with intent. The
bill would provide stronger tools to combat illegal robocalls
and ensure that industry and regulators have the tools and
resources needed to address changing technologies. The TRACED
Act has broad support: more than 60 Senators are cosponsors of
the bill; Attorneys General from all 50 States, the District of
Columbia, and three U.S. territories have expressed support for
the TRACED Act, as have all Commissioners from both the FCC and
FTC; and consumer organizations, including Consumer Reports and
AARP, and telecommunications industry groups, including CTIA
and US Telecom, have called for passage of the bill.
Summary of Major Provisions
S. 151 would do the following:
(1) Provide the FCC with authority to issue additional
civil penalties of up to $10,000 per call on those
individuals who intentionally violate section 227(b) of
the Communications Act of 1934.
(2) Increase the FCC's ability to initiate enforcement
actions against those entities that make illegal
robocalls with the intention to violate the law by
extending the statute of limitations for such
violations from 1 year to 3 years, and eliminates the
citation requirement for such violations.
(3) Direct the FCC to require voice service providers
to implement the STIR/SHAKEN authentication framework
within 18 months of enactment if providers have not
already taken certain steps to do so, while allowing
the FCC to extend the deadline in the event of undue
hardship.
(4) Direct the FCC to study the implementation of STIR/
SHAKEN and the efficacy of the STIR/SHAKEN
authentication framework every 3 years and report
findings on actions taken to revise or replace STIR/
SHAKEN if the FCC determines it is in the public
interest.
(5) Require the FCC to develop rules pertaining to a
safe harbor for voice service providers that
inadvertently block legitimate callers under a STIR/
SHAKEN protocol and have used reasonable care, and
allowing parties adversely affected to verify the
authenticity of their calls.
(6) Require the FCC to conduct a rulemaking regarding
methods to protect subscribers from receiving unwanted
calls or text messages that use an unauthenticated
number.
(7) Direct the Attorney General to convene an
interagency working group to study the prosecution of
violations of section 227(b) of the Communications Act
of 1934 and to provide a report on its findings within
270 days of enactment.
(8) Direct the FCC to conduct a rulemaking to consider
ways to modify FCC policies to reduce access to numbers
by potential violators within 180 days of enactment.
Legislative History
S. 151, the TRACED Act, was introduced on January 16, 2019,
by Senator Thune (for himself and Senator Markey) and was
referred to the Committee on Commerce, Science, and
Transportation of the Senate. As of May 20, 2019, S. 151 has 81
additional cosponsors. On April 3, 2019, the Committee met in
open Executive Session and, by voice vote, ordered S. 151
reported favorably with an amendment in the nature of a
substitute. The Committee also adopted by voice vote an
amendment by Senator Moran that would require the FCC to submit
an annual report to Congress detailing its enforcement
activities related to the laws, regulations, and policies
concerning robocalls and spoofed calls, and specifying the
number of complaints received, complaints issued, and notices
of apparent liability issued by the FCC.
The House of Representatives has an identical bill, H.R.
1602, the Telephone Robocall Abuse Criminal Enforcement and
Deterrence Act, which was introduced on March 7, 2019, by
Representative Kustoff (for himself and Representative Posey)
and was referred to the Committee on Energy and Commerce of the
House of Representatives.
Similar legislation, S. 3655, the Telephone Robocall Abuse
Criminal Enforcement and Deterrence Act, was previously
introduced and referred to the Committee in the 115th Congress.
On April 11, 2019, the Committee's Subcommittee on
Communications, Technology, Innovation, and the Internet held a
hearing titled ``Illegal Robocalls: Calling All to Stop the
Scourge,'' during which the subcommittee received testimony
regarding the need to provide consumers relief from illegal
robocalls and ways to improve law enforcement tools to combat
robocalls.\33\
---------------------------------------------------------------------------
\33\``Illegal Robocalls: Calling All to Stop the Scourge,'' hearing
before the Subcommittee on Communications, Technology, Innovation, and
the Internet of the Senate Committee on Commerce, Science, and
Transportation, 116th Congress (2019).
---------------------------------------------------------------------------
On April 18, 2018, the full Committee held a hearing titled
``Abusive Robocalls and How We Can Stop Them.'' This hearing
examined the problem of malicious spoofing and abusive
robocalls designed to defraud consumers, as well as measures
being taken by government and industry to protect consumers.
On May 18, 2016, the full Committee held a hearing titled
``The Telephone Consumer Protection Act at 25: Effects on
Consumers and Business.'' This hearing examined the TCPA, the
limits it imposed on robocalls, and how the FCC had applied the
TCPA to new technologies and practices popularized since
adoption of the TCPA.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 151 would authorize the Federal Communications
Commission (FCC) to levy additional civil penalties on people
who intentionally violate restrictions on the use of automated
telephone equipment (that is, illegal robocallers and
spoofers).\1\ In addition, S. 151 would extend the period in
which intentional violators are subject to enforcement, and the
FCC would be required to report to the Congress annually on its
enforcement.
---------------------------------------------------------------------------
\1\Robocallers use automatic dialing systems or artificial or
prerecorded voices to place calls without the recipients' consent.
Spoofers disguise their identities by altering or manipulating
information shown on caller ID. Both actions are subject to enforcement
by the FCC.
---------------------------------------------------------------------------
The bill also would direct the FCC to require voice service
providers (VSPs) to implement--within 18 months of enactment--
the framework known as STIR/SHAKEN (secure telephone identity
revisited and signature-based handling of asserted information
using tokens) to authenticate caller ID in their Internet
protocol networks. The FCC would be required to assess the
implementation and efficacy of the STIR/SHAKEN framework and
periodically report to the Congress.
S. 151 also would direct the Department of Justice to form
an interagency working group to study prosecutions related to
restrictions on the use of automated telephone equipment and
report the findings to the Congress.
Budgetary Effects
CBO estimates that additional penalties collected under S.
151, which are recorded in the budget as revenues, would be
insignificant because it would probably be difficult to collect
assessed penalties.
Using information from the FCC, CBO estimates that the
agency's cost to implement the bill would total $1 million over
the 2019-2024 period. However, because the FCC is authorized to
collect fees sufficient to offset its regulatory costs, CBO
estimates that the net cost would be negligible, assuming
appropriation actions consistent with that authority.
CBO also estimates that the cost of the operating an
interagency working group would not be significant and would be
subject to the availability of appropriated funds. The only
exception would be the costs associated with the Consumer
Financial Protection Bureau's participation in the working
group. Any spending by the bureau, which CBO estimates would
not be significant, would be considered mandatory.
Private-Sector Mandates
S. 151 contains private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA). CBO cannot determine
whether those mandates' aggregate costs would exceed the UMRA
threshold ($164 million in 2019, adjusted annually for
inflation).
Under current law, the FCC has encouraged VSPs to develop
call authentication procedures that are equivalent to the STIR/
SHAKEN framework by November 2019. If VSPs do not voluntarily
meet that standard within a year of enactment, the bill would
direct the FCC to require them to adopt the STIR/SHAKEN
framework within 18 months of enactment. The mandate's cost
would be the expenses incurred by VSPs to match or adopt the
framework as established through FCC regulation. Because CBO
cannot anticipate the rate or degree of compliance at the one-
year mark, we cannot determine whether the mandate's costs
would exceed the private-sector threshold.
S. 151 would impose an additional private-sector mandate by
removing a private right of action. The bill would limit the
right of plaintiffs to file suit against certain VSPs for
unintended or inadvertent blocking of calls. The cost of the
mandate would be the forgone net value of awards and
settlements that would have been granted for such claims in the
absence of the bill. CBO has no basis on which to estimate the
number of possible lawsuits that would be precluded by the bill
and cannot predict the amount of potential forgone settlements.
Therefore, we cannot determine whether the cost of the mandate
would exceed the annual threshold.
Finally, if the FCC increased fees to offset the costs of
implementing activities required by the bill, the cost of an
existing private-sector mandate also would increase. Using
information from the FCC, CBO estimates that the increase would
total about $1 million over the 2019-2024 period.
The CBO staff contacts for this estimate are David Hughes
(for federal costs) and Rachel Austin (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
The number of persons covered by this legislation should be
consistent with current levels already regulated under the TCPA
and the Communications Act of 1934.
economic impact
S. 151 is not expected to have an adverse impact on the
Nation's economy. Rather, the legislation would promote
government and commercial efforts to reduce one of the largest
consumer complaints. By eliminating scams and time-wasting
illegal and unwanted robocalls, the legislation should
significantly reduce economic inefficiencies associated with
those calls, as well as combating fraud and other malicious and
costly activity caused by such calls.
privacy
S. 151 would further the privacy protections of the TCPA by
helping to reduce the number of illegal robocalls and
associated fraud.
paperwork
The Committee does not anticipate a major increase in
paperwork burdens resulting from the passage of this
legislation, including with respect to the new obligations on
voice service providers to adopt call authentication
technologies. The bill would require reports to Congress on the
steps taken nationally toward adoption of call authentication
and on the work of a new interagency working group on
preventing robocalls.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that the legislation may be
cited as the ``Telephone Robocall Abuse Criminal Enforcement
and Deterrence Act'' or the ``TRACED Act.''
Section 2. Forfeiture.
Subsection (a) would amend section 227 of the
Communications Act of 1934 (``Communications Act'') to add a
new subsection (b)(4). Subparagraph (A) of that new subsection
would provide that any person that is determined by the
Commission, in accordance with paragraph (3) or (4) of section
503(b) of the Communications Act, to have violated any
provision of section 227(b) would be liable to the United
States for a forfeiture penalty pursuant to sections 503(b)(1)
and 503(b)(2) of the Act. The amount of the forfeiture penalty
determined under this new subparagraph shall be determined in
accordance with subparagraphs (A) through (F) of section
503(b)(2).
Subparagraph (B) of that new subsection would provide that
for violations of section 227(b) where there was the intent to
cause such violation, the bill would provide that the person
who committed such violation would be subject to an enhanced
penalty. The amount of that enhanced forfeiture penalty
determined under this new subparagraph would be equal to an
amount determined in accordance with subparagraphs (A) through
(F) of section 503(b)(2), plus an additional amount not to
exceed $10,000. The new subsection (b)(4) would include a rule
of construction providing that the Commission may not impose a
forfeiture on a person under both subparagraphs (A) and (B) for
the same conduct.
Subsection (a) would further provide that any forfeiture
penalty determined under section 2 would be recoverable under
section 504(a) of the Communications Act. It also would specify
that no forfeiture liability shall be determined under
subparagraph (A) or (B) against any person unless such person
receives the notice required by paragraph (3) or (4) of section
503(b) of the Communications Act.
The FCC currently has a 1-year statute of limitations for
violations of restrictions on the use of automatic telephone
dialing systems. Subsection (a) would give the FCC an
additional 2 years to pursue intentional violations of
restrictions on the use of automatic telephone dialing systems,
and would allow the FCC to impose additional fines for such
violations.
Finally, subsection (a) would revise section 227(h) of the
Communications Act to direct the FCC to prepare an annual
report to Congress on its enforcement of laws, regulations, and
policies related to robocalls and spoofed calls. The report
must include the following:
(1) the number of complaints received that year;
(2) the number of citations issued by the Commission to
enforce laws, regulations, and policies related to
robocalls and spoofed calls;
(3) the number of notices of apparent liability issued
related to such laws, regulations, and policies; and
(4) for each notice of apparent liability, the proposed
penalty, the person to whom the notice was issued, and
status.
Subsection (b) would state that amendments made by this
section shall not affect any action or proceeding commenced
before and pending on the date of enactment.
Subsection (c) would direct the FCC to adopt rules
implementing this section not later than 270 days after
enactment of this Act.
New subsection 227(b)(4)(A) would make clear that the FCC
may impose a penalty against any entity, regardless of whether
or not it is a licensee or common carrier, that violates
section 227(b), without first having to issue a citation. In
addition, new subsection 227(b)(4)(B) augments existing
penalties against those who intentionally violate the TCPA.
Therefore, this new subsection provides the FCC with the
authority to impose a penalty of up to $10,000 per intentional
unlawful robocall, in addition to the forfeiture penalty amount
that may be imposed pursuant to section 503(b) of the
Communications Act of 1934, as amended.
The FCC currently has a 1-year statute of limitations for
violations of restrictions on the use of automatic telephone
dialing systems. The TRACED Act would allow the FCC an
additional 2 years to pursue intentional violations of
restrictions on the use of automatic telephone dialing systems,
and would allow the FCC to impose additional fines for such
violations. The Committee intends that the changes made by this
section would not in any way limit consumers' private rights of
action or existing FCC authority to pursue violations of
restrictions on use of telephone equipment under 47 U.S.C.
503(b)(1). Additionally, the TRACED Act is not intended to
change the existing FCC rules or the enforcement process or
penalties applicable to good-faith calls made by legitimate
businesses as permitted under the provisions of section 227 of
the Communications Act.
The Commission has and would retain in full the ability to
penalize willful or repeated failure to comply with Commission
rules; the TRACED Act would supplement this ability with a 2-
year extension for intentional violations. The Committee
understands that in the past, the Commission has determined
that ``willful,'' as used in section 503(b)(1) of the
Communications Act, means ``the `conscious and deliberate
commission or omission of [any] act, irrespective of any intent
to violate' the law.''\34\ The Commission concluded ``[w]hether
[the Company] intended to violate the TCPA is not relevant to
determining whether the Company's conduct was willful. [The
Company] willfully committed the act of making prerecorded
message calls--a service for which it received financial
compensation from its clients--and those calls violated the
TCPA. [The Company's] violations were therefore willful.''\35\
Although the Commission would continue to be able to pursue
violations--irrespective of any intent to violate-under 47
U.S.C. 227(b)(4)(A), the additional 2 years provided by the
TRACED Act would be limited to 47 U.S.C. 227(b)(4)(B)--
violations with the intent to cause such violation.
---------------------------------------------------------------------------
\34\Dialing Services LLC Forfeiture Order, 32 FCC Rcd. 6192, 6203,
at para 30 (2017), (citing 47 U.S.C. 312(f)(1)) (emphasis in original)
(https://docs.fcc.gov/public/attachments/FCC-17-97A1.pdf).
\35\Id.
---------------------------------------------------------------------------
By limiting the extended enforcement period to ``violations
with the intent to cause such violation,'' the TRACED Act would
allow the Commission additional time to pursue the worst of the
worst: scammers and lead-generation mills intentionally
violating restrictions on the use of automatic telephone
dialing systems. Merely having ``committed the act [that]
violated the TCPA'' would not be sufficient. For example,
making a call using an automatic telephone dialing system
without having updated a calling list to remove customers that
have changed numbers or that revoked consent to receive
otherwise prohibited calls would not reach the intent standard
necessary for action pursuant to 47 U.S.C. 227(b)(4)(B).
Rather, the calling party must knowingly use an automatic
telephone dialing system to intentionally place calls to
covered numbers without a reasonable basis for believing it had
the necessary consent to call. It must also intend to violate
the other applicable legal requirements, including any such
requirements set forth in the TCPA's statutory exceptions and
the regulatory exemptions and clarifications issued by the FCC
relating to the TCPA.
If a caller intentionally uses an automatic telephone
dialing system to call randomly generated numbers, sequential
numbers (i.e., dialing the next ordinal number), or numbers
according to a formula (e.g., every third number or numbers
divisible by seven) without a reasonable basis to conclude that
the intended recipient had consented to receive such calls,
that action would constitute the intent to cause a violation,
as long as the intent requirement was satisfied for the other
elements of the TCPA. Similarly, if a caller uses an automatic
telephone dialing system in violation of the restrictions in 47
U.S.C. 227(b), and in making those calls spoofs its number in
violation of 47 U.S.C. 227(e), the spoofing would demonstrate
intent to cause violations pursuant to 47 U.S.C. 227(b)(4)(B).
The Committee recognizes that the phrasing of this standard
is not a common phrasing in the U.S. Code, and is written
specifically in light of the need to overcome the Commission's
interpretation of ``willful,'' to ensure that this new enhanced
enforcement authority is limited to truly intentional
violations. The Committee intends for the Commission and the
courts to interpret this standard in a straightforward manner
consistent with the guidance expressed here.
It would be an affirmative defense to an action pursuant to
47 U.S.C. 227(b)(4)(B) to demonstrate a practice of having
prior business relationships with the overwhelming majority of
intended call recipients.
The Act would not apply the heightened intent standard to
violations other than violations of 47 U.S.C. 227(b).
Section 3. Call authentication.
Subsection (a) would provide definitions for ``STIR/SHAKEN
authentication framework'' and ``voice service'' as used in
this section.
Subsection (b) would direct the FCC to require a provider
of voice service to implement the STIR/SHAKEN authentication
framework in the Internet-protocol networks of voice service
providers within 18 months of enactment. The FCC shall not take
action against a voice provider, though, if it determines that
a provider of voice service, not later than 12 months after
enactment:
(1) has adopted the STIR/SHAKEN authentication
framework;
(2) has agreed to participate with other voice service
providers in the STIR/SHAKEN authentication framework;
(3) has begun implementation of the STIR/SHAKEN
authentication framework; and
(4) will be capable of fully implementing the STIR/
SHAKEN authentication framework not later than 18
months after enactment.
Subsection (b) also would direct the FCC, within 12 months
of enactment, to report on the determination required under
paragraph (b)(2). The report must include analysis of the
extent to which providers of voice services have implemented
the STIR/SHAKEN authentication framework and an assessment of
the efficacy of the STIR/SHAKEN authentication framework in
addressing all aspects of call authentication.
Subsection (b) also would require the FCC--within 3 years
of enactment and every 3 years thereafter--to analyze the
efficacy of the authentication framework implemented under this
section and to revise or replace the call authentication
framework under this section if the FCC determines it is in the
public interest to do so. The FCC would also be required to
report on the findings of these analyses and any actions to
revise or replace the call authentication under subparagraph
(4)(b).
Efforts to combat illegal robocalls and Caller ID scams are
not intended to dampen competition or innovation in the U.S.
communications marketplace. The success of the STIR/SHAKEN
framework's implementation across U.S. voice networks will
depend, in part, on making solutions available for the variety
of calling technologies and business models. As part of its
implementation report, the Commission shall investigate and
report on the success of efforts to develop standards to enable
STIR/SHAKEN implementation for the various calling technologies
and business models, such as the development of a TN-PoP
solution for outbound-only calling services or its successor.
Subsection (b) also would allow the FCC to extend any
deadline for the implementation of a call authentication
framework required under this section by 12 months or a further
amount of time as the FCC determines necessary if the FCC
determines that purchasing or upgrading equipment to support
call authentication, or the lack of availability of equipment,
would constitute a substantial hardship for a provider or
category of providers of voice services.
In its initial form, STIR/SHAKEN may not function properly
with certain calling technologies and in certain scenarios,
such as outbound-only calling technologies where the service
provider does not assign individual telephone numbers to
outbound callers. The development of a solution will require
broad industry participation, and the FCC should encourage such
participation. The Commission should encourage Alliance for
Telecommunications Industry Solutions (ATIS) members, including
key industry stakeholders, to develop without undue delay, a
call authentication solution such as TN-PoP or a similar
extension of STIR/SHAKEN that will provide an opportunity for
such calling technologies to receive the highest level of
attestation for outbound calls. If such a standard is not
readily available but development is proceeding in a reasonable
and timely manner, the Commission may consider the lack of an
industry-standard approach to signing that would permit these
companies to obtain highest level attestation for their
outbound calls to present a substantial hardship and should, if
it is in the public interest to do so, grant an extension of
the implementation deadline to legitimate voice service
providers using such technologies, if those providers
demonstrate reasonable efforts to minimize caller ID fraud and
readiness to implement a technological solution once it becomes
available. Similarly, the Commission should monitor the pace
with which equipment vendors upgrade their products to enable
STIR/SHAKEN signing and should consider granting an extension,
if consistent with the public interest to do so, to any class
of service providers whose implementation of STIR/SHAKEN is
hampered by an inability to procure the necessary equipment.
Subsection (c) would direct the FCC to promulgate a series
of rules related to the use of call authentication
technologies. Specifically, these rules must establish when a
provider of voice service may block a voice call based on
information provided by a call authentication framework. The
rules would also establish a safe harbor shielding a provider
of voice service from liability for unintended or inadvertent
blocking of calls, or for the unintended or inadvertent
misidentification of the level of trust for individual calls
based on information provided by the call-authentication
framework. The rules would also establish a process to permit a
calling party adversely affected by the information provided by
the authentication framework to verify the authenticity of the
calling party's calls. As part of the creation of this process
the Committee believes that the Commission should consider what
information can be provided to a caller so that the caller can
determine why it has been adversely affected by call
authentication, but should not provide information that would
facilitate frustration of call authentication technologies.
Paragraph (c)(2) would direct the FCC to consider three
elements when limiting the liability of a provider based on the
extent to the which the provider:
(1) blocks or identifies calls based on the information
provided by the authentication framework;
(2) implements procedures based on the information
provided by the authentication framework; and
(3) uses reasonable care.
In determining under what circumstances to provide a safe
harbor for inadvertently blocking legitimate calls, this
section outlines a minimum set of considerations in order to
limit any potentially adverse impact of such action on voice
service providers and consumers. These considerations are not
intended to supplant the factors to which the Commission is
more generally instructed to adhere to in the Communications
Act. In establishing a safe harbor, the Commission's
consideration of more general factors should include, among
other things, the potential effect on different technologies
and categories of voice communications providers including
those who do not qualify as providers of voice services and the
potential effect on subscribers including those who wish to
receive all inbound calls.
When establishing the rules for when a voice service
provider may block a voice call, the Committee expects the FCC
to consider the benefits of protecting consumers from illegal
robocalls, and also the burden on callers and consumers in
allowing voice service providers to block calls without
providing prior or contemporary notice to the caller and an
opportunity for the caller to rebut a blocking determination.
When establishing the process by which callers may have their
calls unblocked, the FCC should consult call originators in
addition to voice service providers. The safe harbor should not
be used to support blocking or mislabeling calls from
legitimate businesses.
The process established by the FCC should require voice
service providers to unblock improperly blocked calls in as
timely and efficient a manner as reasonable. The FCC should
ensure that: (1) legitimate businesses and institutions
conveying information to consumers are not unreasonably
impacted by the TRACED Act or voice service providers'
implementation of STIR/SHAKEN; and (2) the authentication and
unblocking process under STIR/SHAKEN is not unduly burdensome
to and does not unreasonably negatively impact legitimate call
originators. Although blocking may be warranted in certain
instances, the Commission should require that voice service
providers provide their subscribers with a meaningful
opportunity to understand that call filtering or blocking of
certain inbound calls to their telephone number is being
employed and should consider the feasibility of providing
subscribers a meaningful and persistent opportunity to reject
such blocking.
Subsection (d) would clarify that nothing in this section
precludes the FCC from initiating a rulemaking pursuant to its
existing authority.
Section 4. Protections from spoofed calls.
This section would direct the FCC to initiate a rulemaking
within 1 year of enactment to help protect a subscriber from
receiving unwanted calls or text messages from a caller using
an unauthenticated number.
The FCC must consider the following when promulgating rules
pursuant to this section:
(1) the GAO report on combating the fraudulent
provision of misleading or inaccurate caller
identification required by the Consolidated
Appropriations Act 2018 (P.L. 115-141);
(2) the best means of ensuring that a subscriber or
provider has the ability to block calls from a caller
using an unauthenticated North American Numbering Plan
number;
(3) the impact on the privacy of a subscriber from
unauthenticated calls;
(4) the effectiveness in verifying the accuracy of
caller-identification information; and
(5) the availability and cost of providing protection
from the unwanted calls or text messages described in
this section.
The various considerations seek to ensure that the rules
promulgated by the Commission are designed to ensure the
Commission considers possible harm to competition and consumer
trust in the telephone network. These considerations are a
minimum set of considerations and the Commission should also
consider: the benefits of measures designed to protect
subscribers from receiving unwanted calls; the effect of such
measures on the provision of voice communications by entities
that do not qualify for full attestation under the STIR/SHAKEN
standard; the effect on different voice technologies and
business models; the effect of blocking or failing to block on
the continued reliability of the public switched telephone
network; and mechanisms to minimize potential harms. Measures
designed to protect subscribers from receiving unwanted calls
or texts on the basis of the call authentication framework can
produce unwanted negative outcomes or inadvertent harms. For
example, call blocking or filtering could disproportionately
affect categories of providers excluded from STIR/SHAKEN--such
as non-interconnected VoIP, international calls, and TDM
calls--and this could harm competition as well as the perceived
validity of the authentication system. If subscribers begin to
question the validity of STIR/SHAKEN, because it results in
over-blocking or over-filtering of calls, there is a danger
that subscribers could ignore the information it supplies,
notwithstanding considerable industry investment in the
framework.
In considering the best means of ensuring that a subscriber
or provider has the ability to block calls from a caller using
an unauthenticated North American Numbering Plan number, the
Commission should ensure that its efforts consider to the
extent possible the Government Accountability Office report
required by section 503(c) of division P of the Consolidated
Appropriations Act 2018 (P.L. 115-141), and the consumer
education materials developed pursuant to section 503(b) of
that law.
Section 5. Interagency working group.
This section directs the Attorney General, in consultation
with the Chairman of the FCC, to convene an interagency working
group to study prosecution of robocall violations. The section
prescribes the working group's study to include whether, and if
so how, any Federal laws, including regulations, policies, and
practices, or budgetary or jurisdictional constraints, inhibit
the prosecution of such violations. The study would also
identify existing and potential Federal policies and programs
that encourage and improve coordination among Federal
departments and agencies and States, and between States, in the
prevention and prosecution of robocall violations.
The working group should also consider collection of fines
imposed by the FCC for robocall violations.
Paragraph (b)(3) would direct the working group to identify
existing and potential international policies and programs that
encourage and improve coordination between countries in the
prevention and prosecution of robocall violations.
Paragraph (b)(4) would also direct the working group to
study the following:
(1) if any additional resources are necessary for the
Federal prevention and prosecution of criminal
violations of the Act;
(2) whether to establish memoranda of understanding
regarding the prevention and prosecution of such
violations between the States, the States and Federal
Government, and the Federal Government and a foreign
government;
(3) whether to establish a process to allow States to
request Federal subpoenas from the FCC;
(4) whether extending civil enforcement authority to
the States would assist in the successful prevention
and prosecution of such violations;
(5) whether increased forfeiture and imprisonment
penalties are appropriate;
(6) whether regulation of any entity that enters into a
business arrangement with a common carrier for the
specific purpose of carrying, routing, or transmitting
a call that constitutes such a violation would assist
in the successful prevention and prosecution of such
violations; and
(7) the extent to which any Department of Justice
policies to pursue the prosecution of violations
causing economic harm, physical danger or erosion of an
inhabitant's peace of mind and sense of security
inhibits the prevention or prosecution of any such
violations.
Paragraph (c) would direct the composition of the working
group to include possible members from the Department of
Commerce, the Department of State, the Department of Homeland
Security, the FCC, the FTC, and the Bureau of Consumer
Financial Protection.
Paragraph (d) would direct the working group to consult
with non-Federal stakeholders, such as those the Attorney
General determines to have relevant expertise.
Paragraph (e) would require the working group to report
within 270 days of enactment any recommendations regarding the
prevention and prosecution of violations and what progress
Federal departments and agencies have made in implementing
those recommendations.
The Commission should consider establishing a task force
within the Enforcement Bureau to advise the Commission on the
prevention of robocall fraud.
Section 6. Access to number resources.
This section directs the FCC to commence a proceeding
within 180 days of enactment to determine whether FCC policies
regarding access to number resources could be modified to help
reduce access to numbers by potential violators of section
227(b). This section further directs the FCC to implement
regulations to achieve the goal of reducing such access if it
determines policy modifications are necessary.
This section would also impose liability under section 503
of the Communications Act on any person who knowingly, through
an employee, agent, officer, or otherwise, directly or
indirectly, by or through any means or device, is a party to
obtaining number resources, including number resources for toll
free and non-toll free telephone numbers, from a common carrier
regulated under title II in violation of a regulation
promulgated by the Commission under this section.
In considering whether the Commission's rules regarding
access to number resources can be modified to help reduce
assess to numbers by potential perpetrators of violations of
section 227(b), the Commission should consider implications for
innovation and the voice communication economy. For example,
modification of policies for access to number resources could
increase the difficulty for non-offenders to obtain U.S.
telephone numbers, and requirements such as in-person
presentation of documents or identity verification tend to
favor non-Internet-based companies or those with physical lines
over those who do business via the Internet or use newer
technologies. Similarly, residency requirements for telephone
numbers may reduce downward competitive pressure on
international voice calling rates. Therefore, at a minimum, the
Commission should consider, among other things, the direct or
indirect impact that any modifications might have on
competition in and rates for voice communications, including
international calling, and the impact that any modifications
might have on different voice technologies and business models,
as well as reasonable measures that could be taken to reduce
potential negative impacts.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
[47 U.S.C. 227]
SEC. 227. RESTRICTIONS ON THE USE OF TELEPHONE EQUIPMENT.
(a) * * *
(b) Restrictions on the Use of Automated Telephone
Equipment.--
(1) * * *
(4) Civil forfeiture.--
(A) In general.--Any person that is
determined by the Commission, in accordance
with paragraph (3) or (4) of section 503(b), to
have violated any provision of this subsection
shall be liable to the United States for a
forfeiture penalty pursuant to section
503(b)(1). The amount of the forfeiture penalty
determined under this subparagraph shall be
determined in accordance with subparagraphs (A)
through (F) of section 503(b)(2).
(B) Violation with intent.--Any person that
is determined by the Commission, in accordance
with paragraph (3) or (4) of section 503(b), to
have violated this subsection with the intent
to cause such violation shall be liable to the
United States for a forfeiture penalty. The
amount of the forfeiture penalty determined
under this subparagraph shall be equal to an
amount determined in accordance with
subparagraphs (A) through (F) of section
503(b)(2) plus an additional penalty not to
exceed $10,000.
(C) Recovery.--Any forfeiture penalty
determined under subparagraph (A) or (B) shall
be recoverable under section 504(a).
(D) Procedure.--No forfeiture liability shall
be determined under subparagraph (A) or (B)
against any person unless such person receives
the notice required by paragraph (3) or (4) of
section 503(b).
(E) Statute of limitations.--No forfeiture
penalty shall be determined or imposed against
any person--
(i) under subparagraph (A) if the
violation charged occurred more than 1
year prior to the date of issuance of
the required notice or notice of
apparent liability; and
(ii) under subparagraph (B) if the
violation charged occurred more than 3
years prior to the date of issuance of
the required notice or notice of
apparent liability.
(F) Rule of construction.--Notwithstanding
any law to the contrary, the Commission may not
determine or impose a forfeiture penalty on a
person under both subparagraphs (A) and (B)
based on the same conduct.
(c) * * *
[(h) Junk Fax Enforcement Report.--The Commission shall
submit an annual report to Congress regarding the enforcement
during the past year of the provisions of this section relating
to sending of unsolicited advertisements to telephone facsimile
machines, which report shall include--
[(1) the number of complaints received by the
Commission during such year alleging that a consumer
received an unsolicited advertisement via telephone
facsimile machine in violation of the Commission's
rules;
[(2) the number of citations issued by the Commission
pursuant to section 503 during the year to enforce any
law, regulation, or policy relating to sending of
unsolicited advertisements to telephone facsimile
machines;
[(3) the number of notices of apparent liability
issued by the Commission pursuant to section 503 during
the year to enforce any law, regulation, or policy
relating to sending of unsolicited advertisements to
telephone facsimile machines;
[(4) for each notice referred to in paragraph (3)--
[(A) the amount of the proposed forfeiture
penalty involved;
[(B) the person to whom the notice was
issued;
[(C) the length of time between the date on
which the complaint was filed and the date on
which the notice was issued; and
[(D) the status of the proceeding;
[(5) the number of final orders imposing forfeiture
penalties issued pursuant to section 503 during the
year to enforce any law, regulation, or policy relating
to sending of unsolicited advertisements to telephone
facsimile machines;
[(6) for each forfeiture order referred to in
paragraph (5)--
[(A) the amount of the penalty imposed by the
order;
[(B) the person to whom the order was issued;
[(C) whether the forfeiture penalty has been
paid; and
[(D) the amount paid;
[(7) for each case in which a person has failed to
pay a forfeiture penalty imposed by such a final order,
whether the Commission referred such matter for
recovery of the penalty; and
[(8) for each case in which the Commission referred
such an order for recovery--
[(A) the number of days from the date the
Commission issued such order to the date of
such referral;
[(B) whether an action has been commenced to
recover the penalty, and if so, the number of
days from the date the Commission referred such
order for recovery to the date of such
commencement; and
[(C) whether the recovery action resulted in
collection of any amount, and if so, the amount
collected.]
(h) TCPA Enforcement Report.--The Commission shall submit an
annual report to Congress regarding the enforcement during the
preceding year of laws, regulations, and policies relating to
robocalls and spoofed calls, which report shall include--
(1) the number of complaints received by the
Commission during the year alleging that a consumer
received a robocall or spoofed call;
(2) the number of citations issued by the Commission
pursuant to section 503 during the year to enforce any
law, regulation, or policy relating to a robocall or
spoofed call;
(3) the number of notices of apparent liability
issued by the Commission pursuant to section 503 during
the year to enforce any law, regulation, or policy
relating to a robocall or spoofed call; and
(4) for each notice referred to in paragraph (3)--
(A) the amount of the proposed forfeiture
penalty involved;
(B) the person to whom the notice was issued;
and
(C) the status of the proceeding.
