By a vote of 429-3, the House has passed Chairman Frank Pallone’s (D-NJ) “Stopping Bad Robocalls Act,” setting the stage for a conference committee mark-up with the Senate and the potential (and highly likely) adoption of new legislation that could fundamentally alter the FCC's future interpretations of the TCPA and the Act's effect on businesses and marketers.
The Stopping Bad Robocalls Act was first introduced in 2018 and then reintroduced on February 4, 2019, after Representative Pallone became Chair of the House Energy and Commerce Committee. Compared to average legislation generated in the House, the bill has moved through the mark-up and legislative process rather quickly, revised only once before being unanimously approved by the Communications and Technology Subcommittee on June 25 and the full Committee on July 17.
As we previously reported, the revised version of the Stopping Bad Robocalls Act had several material changes as compared to the original version introduced by Representative Pallone, including the following:
- Instead of Congress intervening to resolve the continuing debate about the proper definition of an automatic telephone dialing system (ATDS) by defining a robocall as being a call made using “equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator,” the revised bill requires the FCC to “prescribe such regulations, or amend such existing regulations, as necessary to clarify” the ATDS definition within six months.
- Instead of declaring that “prior express consent may be revoked at any time and in any reasonable manner,” the revised bill directs the FCC to adopt regulations that, “in the judgment of the Commission, ensure that” “consumers can withdraw consent for” calls and text messages sent using an ATDS or using an artificial or prerecorded voice.
- In light of the FCC’s decision to implement a reassigned number database and a safe harbor without awaiting Congressional action, instead of codifying the creation of a reassigned number database, the revised bill directs the FCC to provide Congress a report regarding the database's implementation within one year of the bill becoming law.
- Instead of defining “called party” to mean only the “the current subscriber of the telephone number to which the call is made,” the revised bill defines the term to mean either “the current subscriber or the customary user of the telephone number to which the call is made,” apparently to take into consideration the use of shared phones and family plans.
- Instead of requiring the FCC to implement rules requiring voice carriers to provide call authentication technology “by a date specified by the Commission,” the revised bill mandates that this technology be implemented by most voice carriers “within six months” of the Commission adopting new rules in its on-going rulemaking proceeding regarding implementation of a framework known as SHAKEN/STIR.
- The revised version of the will also requires the Commission to follow up on its recent decision to allow carriers to opt consumers into “call blocking by default” services and ensure that these services are being provided with “transparency” and with a no-cost means of “redress” for callers who are erroneously blocked.
Each of these revisions is included in the version passed by the House, along with various other provisions that were in the bill when it was first introduced. Missing, though, are provisions that address and tackle the ever-present concern of predatory TCPA litigation, a concern every legitimate business and good-faith marketer must constantly face whenever they make calls or send messages.
The Stopping Bad Robocalls Act now heads to conference committee, where it will be reconciled with Senator John Thune’s (R-SD) more-limited TRACED Act, which passed the Senate by a vote of 97-1 in late May. Given the support both of these robocall-centered bills received in their respective chambers, it is likely that a piece of compromise legislation will be agreed upon, which will lead to a TCPA and FCC shakeup in the near future.