Consumer frustration with illegal robocalls and robotexts has placed the FCC’s related regulatory scheme top of mind for regulators and legislators alike.

FCC Chairwoman Jessica Rosenworcel recently sent a letter to Senator Brian Schatz in response to his call for further FCC action to combat illegal robocalls and robotexts. In the letter, Rosenworcel stated her position that the FCC would benefit greatly from having additional authority from Congress to expand its regulatory scope. As an example, Rosenworcel recommended that Congress provide the FCC with clear authority to access Bank Secrecy Act information through administrative subpoenas for all types of non-content customer records to assist the agency in its investigation efforts of illegal robocallers and robotexters.

In helpful language on the scope on the TCPA’s prohibition on autodialed calls and texts to wireless numbers, Rosenworcel lamented that the FCC’s current authority has been constrained by the Supreme Court’s Facebook v. Duguid decision that took a narrow view of the TCPA’s “autodialer” definition, observing that the decision “reduces the range of technology that is covered by the law.”

The Supreme Court’s decision in that case clarified that dialing equipment that does not have the capacity to store or produce numbers to be called using a random or sequential number generator, and dial those numbers, is not an autodialer subject to the TCPA’s requirements for obtaining consent before calling or texting wireless numbers. While this clarity was welcomed by a range of businesses engaged in legitimate calling and messaging activities to customers and prospects, regulators, legislators, and consumer advocates remain concerned with the impacts on the ability to combat unwanted robocall activity and continue their pursuit of additional tools to address illegal robocalling. The challenge is doing so in a way that does not hobble critical enterprise messaging technologies that consumers welcome and have come to expect, or in a way that could serve as a boon to abusive class action litigation.