Spam callers have averted the Telephone Consumer Protection Act (“TCPA”) to evolve their operations and overwhelm Americans with billions of spam calls. These spam calls can use fraud, blackmail, and lies to solicit information and payment from vulnerable Americans. In fact, a February 2021 Business Insider survey found that 46% of Americans receive daily spam calls. When spam calls are this prevalent, there are questions of how robocallers can subvert the TCPA to target vulnerable Americans. Although spam calls target both rich and poor targets at similar rates, a particular concern arises when money is stolen from poor Americans, as these individuals have fewer legal resources to recuperate their money. Further, 85% of older Americans are targeted as compared to 66% of their younger counterparts, which is especially troubling since these individuals often do not have the technical literacy to understand that spam calls are in fact illegitimate attempts to scam them of their money.
The process by which robocallers reach American consumers typically works as follows: First, a company seeking to sell an item reaches out to a robocalling company and forms a contract with the robocalling company. A robocaller then uses a gateway carrier to connect with phone carriers which ultimately passes the call onto American consumers. If a caller answers the robocall, they are placed on a list which then identifies them as a target. The robocalling company will proceed to highlight “qualified leads” and receive a $6 to $7 dollar commission per lead for those who are willing to buy the original company’s product. If a target is interested in the product, the call is finally transferred to a call center to complete the sale.
As robocalls have intensified, Congress has sought to introduce legislation to curb this practice. The Telephone Consumer Protection Act of 1992 was enacted to help protect consumers from “autodialed or prerecorded calls or texts.” Sales callers have to abide by limits placed on what is revealed during the call and may not call consumers before 8 am or after 9 pm. However, automated spam calls have been reported to reach a monthly total of 3.4 billion in April 2018. Further, the technology of robocallers has been increasing at a pace that the TCPA cannot catch up with. Recent legislation such as “Secure Telephone Identity Revisited (STIR) and Signature-based Handling of Asserted Information Using toKENs (SHAKEN) standard” requires carriers to sign off and legitimize calls before they reach a consumer. However, the FCC and phone carriers still lag behind robocallers who have adapted to the new guidelines set forth in STIR/SHAKEN and evenrelocated outside the United States to initiate calls.
The Supreme Court acknowledged that there were gaps in the rules that the TCPA simply could not fill. In Barr v. American Association of Political Consultants, Inc., a group of political and nonprofit organization-robocallers sued the U.S. Attorney General, and asked to invalidate the TCPAs cell phone robocall ban because the plaintiffs believed that a provision of the TCPA unconstitutionally favored debt collection calls over other spam calls. The Supreme Court upheld TCPA’s robocall ban but also ruled that the government-debt exception was unconstitutional because it violated the First Amendment. Gibson Dunn asserts that in practical terms, while political robocallers still cannot make robocalls, the substance of the calls is now “treated equally” with other robocallers.
The prevalence of robocallers has caused private telecommunications companies to work both independently and as a collective group to prevent unwanted calls. T-Mobile, a wireless phone carrier, introduced the T-Mobile Scam Shield with features like Caller ID, identification of spam callers, and an ability to change a wireless number annually to help protect their customers from spam calls. However, robocallers have begun continually changing their phone numbers to bypass T-Mobile’s Scam Shield and Caller ID block, which simply cannot keep pace with “caller ID spoofing” used by many robocallers to bypass blocked numbers. In addition, the Federal Communications Commission (“FCC”) determined that companies that proactively block calls from suspicious callers can be a widespread solution, which is used by communications companies to protect consumers.
To help alleviate the rampant robocalling problem, the FCC should use its full statutory authority to impose monetary forfeiture, and take any communications equipment used by gateway companies who turn a blind eye to robocalls and call center companies utilizing robocaller companies. The FCC has recently stepped up its enforcement efforts to counter spoofed calls. One such enforcement effort is focused on cease and desist letters and increased collaboration with public and private stakeholders through a “Robocaller Response Team.”
While cease and desist letters are important in maintaining a defendant’s due process rights and ensuring non-arbitrary judicial authority measures, the FCC should use its Robocall Response Team more effectively. For instance, the team could determine which network operators are permitting and facilitating robocalls and impose heavy fines, starting at $10 million, to restrict the ability of these companies to call consumers. According to the FCC’s monetary forfeiture policy, the FCC issues a “Notice of Apparent Liability” (“NAL”) which is the “FCC’s charging document.” The FCC asserted that a forfeiture is not considered closed until paid. However, the FCC should seize the communications property of robocallers. In addition to sending an NAL, the FCC also conducts in rem seizures to deprive violators of communications property. My solution would combine in rem seizures with monetary penalties to ensure that robocaller companies do not sell their equipment, software, or any technology that could potentially harass consumers. If a call center were determined to be located in the United States, then the FCC could—under this solution—seize control of the cell phones, landlines, computers, software, and databases used by the robocalling company to store and collect information on consumers.
However, the issue with the above solution is that the FCC only has jurisdiction in the United States and as previously noted, a large majority of robocalls originate from overseas. At times, the FCC has extended its jurisdiction to capture international robocalling companies that broadcast in the United States. In 2018, for instance, the FCC issued a rule that required foreign media companies who broadcast to U.S. consumers to produce a report that “disclosed their relationship with foreign principals.” The FCC could issue a telecommunications rule similar to its 2018 version for media companies, since T-Mobile, Verizon, and many other carriers operate internationally and serve as a conduit for robocalling to U.S.-based consumers. A rule like this would incentivize phone carriers to do all they can to identify robocallers and prevent U.S. consumers from receiving a barrage of unwanted calls.
About the Author: Antonio Ellorin is a second-year law student at Cornell Law School. He grew up in Los Angeles, California, and has a political science degree from the University of Southern California. As an intern at the California Department of Justice, Licensing Section, he represented the California Contractors State Licensing Board and looks forward to bankruptcy work over the next summer.
Suggested Citation: Antonio Ellorin, Seize and Desist: How the FCC Can Stop Robocallers, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Jan. 30, 2022), http://jlpp.org/blogzine/?p=3851.