In 1991, Congress passed the Telephone Consumer Protection Act (TCPA), which prohibits most calls using an autodialer or a prerecorded message. But robocalls are an unrelenting problem. Decades after the TCPA’s passage, consumers continue to be pelted with unwanted automated calls.
In 2020, more than 45 billion robocalls were made nationwide (more than 30 billion robocalls have been sent each year since 2017). The FTC consistently receives hundreds of thousands of robocall complaints each month.
Robocalls have become so pervasive that Americans often ignore calls from numbers they do not recognize. This has included calls related to medical treatment and, during the COVID-19 pandemic, to contact tracing efforts.
In some instances, unwanted robocalls amount to disruptive telemarketing, in others they are debt collection calls incessantly demanding payment from the wrong person, collection calls harassing someone who does owe a debt, attempts at voter suppression, or outright scams. Robocalls have become an automated scourge.
How Callers are Regulated
The TCPA prohibits most autodialed or prerecorded calls, texts, or faxes made without prior written consent. People can also opt-out of unwanted calls through the Do Not Call (DNC) Registry, a database that telemarketers are required to check before calling a consumer’s phone number.
Whether a company calls you themselves or hires a third-party organization to make illegal calls (as well as texts or faxes) on that company’s behalf, that company should be held accountable for violating the TCPA.
EPIC regularly files amicus briefs supporting consumers in cases against illegal robocallers and participates in legislative and regulatory processes concerning the TCPA.
The TCPA defines an autodialer as “equipment which has the capacity –(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” For a long time, courts, the FCC, and the marketing industry itself understood an autodialer to be equipment that makes a high volume of calls in a short amount of time with minimal human intervention.
In the last few years, defendants in TCPA cases began to argue that autodialers must use number generators to store or produce numbers, instead of simply dialing numbers stored in a customer contact list. In 2021, the U.S. Supreme Court agreed. Some have treated the pronouncement as the death knell of the autodialer restriction, but EPIC champions an interpretation of the autodialer definition that is consistent with the plain text of the statute and ensures that the TCPA continues to regulate the most popular equipment used to mass dial consumers.
Autodialers are one of the primary tools robocallers use to make calls. If you hear a long pause before a caller speaks to you, or receive a text with a generic message, it is likely that an autodialer was used to contact you. One caller using an autodialer can make more than 1,000 calls per day. This equipment is easy to use and easy to find from a simple Google search. Without a strong autodialer definition, our phones will be inundated with unwanted automated calls. EPIC is fighting against this outcome.
Perhaps you have had the following experience: you are looking for quotes on a purchase, say car insurance or movers. You answer a few questions on a website, which then asks you to enter your phone number to see your quotes. Within minutes, you are bombarded by robocalls. And they won’t stop.
The trap you have fallen into is called lead generation. Lead generators are businesses that collect and sell information about consumers who are interested in certain products or services. Lead generators existed long before the internet, but today, they often use websites to lure in unsuspecting leads with misleading or false claims, collect their phone number, and, in small print, say that they consent to being robocalled by tens, hundreds, or even over a thousand different companies. The lead generators will then sell the lead’s contact information to these companies or their telemarketers, who then blast the lead with robocalls.
To make matters worse, lead generators often do not validate the information they collect from their webforms. That means someone else—perhaps even a bot—may enter your phone number into a lead generator’s website, and the lead generator will assume you consented to be robocalled when, in fact, you did not.
Sellers of goods and services are increasingly employing telemarketers that then employ tens or even hundreds of different web publishers to collect leads on their behalf—and they do not validate the information collected by the lead generators, either. As a result, many of the people who are robocalled through the lead generation process never consented to the calls and have sued the sellers and the telemarketers under the TCPA. Despite the fact that the FCC has interpreted the TCPA to confer liability onto companies that hire third-parties to make robocalls on their behalf, sellers and even their telemarketers have been able to escape liability because, they claim, obtaining consent was someone else’s responsibility.
EPIC is participating as amicus in McCurley v. Royal Seas Cruises to fight for consumers’ rights to hold sellers and telemarketers liable for robocalling leads without first verifying their consent to be called.
Obligations Of Telephone Service Providers
In 2019, Congress passed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, or the TRACED Act, which requires telecommunications service providers to play an active role in preventing robocalls on their networks. The TRACED Act requires providers to implement anti-spoofing, call authentication, and call blocking measures. Providers also have a responsibility to investigate likely instances of illegal behavior by their customers. Such behavior might include an abnormally high volume of calls, a high ratio of calls lasting less than one minute in duration, and/or the use of caller ID numbers that are local to the called party, suggesting that the caller is spoofing numbers local to each called consumer.
EPIC is advocating for the FCC to require upstream improvements to how carriers monitor activity on their networks and to require providers to impose consequences on bad callers to reduce unwanted robocalls.
Call Spoofing and Caller Authentication
Robocalls are so pervasive that 70% of Americans surveyed reported that they no longer answer calls from unrecognized numbers.
In response to phone subscribers not answering calls from numbers they don’t recognize, robocallers have resorted to impersonating numbers a consumer might recognize. This is known as call spoofing. Call spoofing occurs when a dialer tricks the consumer’s caller ID into thinking that the caller is calling from a different number, sometimes even imitating a local number or government number. Not only does this frustrate a consumer’s ability to screen their calls, but it also makes enforcement of the TCPA more difficult.
Using its authority under the TRACED Act, the FCC has established an Industry Traceback Group to help identify the entities responsible for unwanted calls from spoofed numbers. The TRACED Act also requires providers to authenticate whether the number provided to a caller ID is a number owned by the caller. If the records do not match, the provider is required to prevent the robocall from going through.
EPIC believes the FCC should require service providers to more extensively monitor their networks and take action against bad callers. The FCC should also bring enforcement actions against service providers when they neglect to follow through on their commitments to reduce robocalls.
Call Blocking and Labeling
Prior to 2017, the FCC generally considered call blocking without consumer consent to be an unjust and unreasonable practice. Beginning in 2017, the FCC authorized voice service providers to block calls that were highly likely to be illegal (e.g. calls from numbers that were not registered to any subscriber), in order to more effectively combat robocalls. Today, blocked calls may go directly to voicemail, may ring once, or may not even ring at all. Some voice providers also offer call labeling, which displays messages like “spam” or “scam likely” alongside the caller ID display when the provider believes there is a high likelihood that the incoming call is from a bad actor.
EPIC supports voice providers having the ability to label or block calls that are highly likely to be robocalls or otherwise malicious.
Recent Documents on Robocalls
US Court of Appeals for the Ninth Circuit
Whether Royal Seas Cruises is vicariously liable for illegal robocalls made on its behalf using bad leads from an online lead generator.
US Court of Appeals for the Sixth Circuit
Whether the Supreme Court's decision to invalidate and sever the government debt exception from the Telephone Consumer Protection Act's robocall ban requires courts grant retroactive immunity to robocallers for illegal calls made for the five years between the exception's enactment and the Court's decision to sever.
US Supreme Court
Whether the Telephone Consumer Protection Act prohibits use of mass telephone dialing systems that dial numbers from a database.
US Court of Appeals for the Seventh Circuit
Whether a telephone dialing or text messaging system that mass dials telephone numbers from a list is an autodialer under the Telephone Consumer Protection Act
US Supreme Court
Whether the Hobbs Act required the district court in this case to accept the FCC's legal interpretation of the Telephone Consumer Protection Act