New Bill to Modernize the TCPA Would Significantly Expand Potential Liability

On January 29, 2024, Congressman Frank Pallone, Jr. introduced the Do Not Disturb Act, a bill that would amend the Telephone Consumer Protection Act (TCPA) and “fix” the Supreme Court’s ruling in Duguid that limited the definition of “automatic telephone dialing system” (ATDS).

Robocalls, the New ATDS

The bill would delete the term “automatic telephone dialing system” from the TCPA and would instead replace it with “robocalls.” The bill defines “robocalls” as calls and text messages sent using equipment that makes calls or sends text messages to stored telephone numbers or telephone numbers generated by a random or sequential number generator, or using an artificial or prerecorded voice or an artificially generated message.

The change would significantly expand the technologies that trigger the TCPA’s heightened consent requirements, including any equipment that involves “stored telephone numbers,” and thereby expand potential TPCA liability for calls and texts.

However, the bill would exclude from the robocall definition calls and text messages sent using equipment that requires “substantial human intervention.”. Although the bill does not explain how much human intervention is needed to qualify as “substantial,” the language is more consistent with the human intervention test many courts applied before the Supreme Court ruling in Duguid.

Strict Regulations on the Use of Artificial Intelligence

The bill also addresses the use of artificial intelligence (AI) and requires any robocalls using AI to disclose that fact at the beginning of the robocall. Furthermore, the bill would double the fines and penalty imposed by the TCPA if AI is used to impersonate an individual or entity with the intent to defraud, cause harm, or wrongfully obtain anything of value. This follows the Federal Communications Commission’s (FCC) recent adoption of a Declaratory Ruling that also addresses the use of AI under the TCPA.

New Obligations and Penalties for VoIP Providers

Under the Act, Voice over Internet Protocol (VoIP) providers would need to verify the identity of each customer and proactively monitor and analyze traffic to determine if robocalls are being made. If a VoIP provider finds a pattern or practice of making robocalls, the provider then must investigate.

If the provider finds sufficient evidence of violations, it must take affirmative measures to mitigate the origination and transmission of the robocalls and submit a public report of the investigation and evidence to the FCC’s Robocall Mitigation Database.

Furthermore, VoIP providers would be subject to liability if they fail to comply with the regulations or knew or should have known that the service was being used to facilitate illegal robocalls. The bill also directs the FCC to promulgate rules to require providers of voice service to offer robocall-blocking service to each customer at no additional charge.

Wait…There’s More

Other provisions would direct the FCC to study the possibility of tracing the origin of robotexts, monitor the top 100 illegal or suspected to be illegal robocall campaigns, and expand the Telemarketing Sales Rule’s Do Not Call hours to any time outside of 9 am to 5 pm local time.

The bill comes at a time of significant updates in telemarketing laws and orders. For example, the FCC issued a new Declaratory Ruling finding that voice calls using AI-generated voices fall under the TCPA.

In addition, the FCC just adopted a ruling addressing revocation of consent, which requires that callers and texters honor do-not-call and consent revocation requests within a reasonable time, not to exceed 10 business days from receipt. This provides greater flexibility than the timeline previously proposed,

that the revocation of consent requests and do-not-call requests must be processed within 24 hours.

The FCC also codified its 2015 ruling that consumers can revoke consent under the TCPA through any reasonable means. The agency ruled that a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA, as long as the confirmation text merely confirms the called party’s opt-out request and does not include any marketing information.

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