States, Congress Fight Robocall 'Arms Race'

Federal and state lawmakers are looking for new ways to tighten robocall restrictions amid an evolving landscape, but experts told us it’s still challenging for governments to keep ahead of bad actors. Some on Capitol Hill are hoping to quickly enact a new anti-robocall package this year, despite a rapidly closing legislative window. State legislators are acting in case federal legislation stalls. Robocall opponents must “press on every front,” said North Carolina Attorney General Josh Stein (D) in an interview: He believes stopping bad actors requires state and federal collaboration, and should include industry and other countries.

Stein believes states should continue to play a leading role due to their success in recent years. He cited his leadership of a bipartisan 51-AG coalition that worked with big telcos in 2019 to develop anti-robocall principles as “one of the most meaningful” efforts to curb bad actors in recent years. The principles focused on deploying technology to counter robocalls and improving telcos’ cooperation with law enforcement. “We’ve actually seen some improvements,” Stein said. He noted state AGs also pushed the FCC to do more, including a successful effort to shorten the deadline for small voice service providers that aren’t facilities-based to implement Stir/Shaken (see 2112140023).

“The next wave of enforcement” for state AGs is to hold accountable the “smaller phone companies that are making money off of robocalls” when they come through their networks, Stein said. “They have an actual financial incentive to turn a blind eye to the traffic.” North Carolina sued gateway provider Articul8 on suspected fraudulent robocalls in January (see 2201250052). Some AGs are expanding focus to automated text messages. Florida AG Ashley Moody (R) said Dec. 27 that robotexts are “now more prevalent, and potentially more dangerous, than robocalls since malicious links can be clicked on directly in a text.”

Top lawmakers on the House and Senate Commerce committees are, meanwhile, eyeing how to translate FCC Chairwoman Jessica Rosenworcel’s recent call for new bills to strengthen the commission’s anti-robocall enforcement power into legislative language. Rosenworcel urged the House Communications Subcommittee in late March (see 2203310060) to bypass DOJ and give the FCC direct authority to seek fines against robocallers in federal court. She has been pressing Congress for a fulsome update to the FCC authority, given the Supreme Court’s narrowed definition of what constitutes an automatic telephone dialing system in Facebook v. Duguid (see 2104010063).

Rep. Anna Eshoo, D-Calif., told us she intends to follow through quickly on her promise at the House Communications hearing to work with Rosenworcel on legislation aimed at increasing the FCC’s robocall enforcement authority. “I would hope we can move quickly” on such a bill because “there isn’t anyone in this country who can stand up and say ‘I love robocalls,’” Eshoo said: “When something doesn’t work well, you need to fix it." It’s clear “DOJ is not going after these spammers” with sufficient force, so “the FCC should have the authority," she said.

Sen. Ed Markey, D-Mass., is also interested in pursuing legislation to increase the FCC’s robocall enforcement authority in the ways Rosenworcel proposes, he told us. “It’s a crisis that continues” to require Congress’ attention, he said. A Markey aide later said he aims for future legislation to “build on” what Congress included in the 2019 Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (Traced) Act (see 1912310028), including via the Robocall Trace Back Enhancement Act. S-3335 would protect the Traced Act’s USTelecom-led Industry Traceback Group by providing immunity from lawsuits for “receiving, sharing and publishing” certain “covered” trace back information, including information related to “suspected fraudulent, abusive or unlawful robocalls” (see 2112080059).

Senate Communications Subcommittee ranking member John Thune, R-S.D., believes Rosenworcel’s request for more direct FCC enforcement authority is “a fair request” since robocalls remain a problem nationwide. “We’d be happy to look at adding some additional clarity and direction to the authority” the FCC already has, the Traced Act lead sponsor told us: “There’s got to be a consequence to these folks who perpetuate these schemes in the first place” and Congress should consider reworking the current FCC-DOJ arrangement if it’s “not sufficient.” The Traced Act is a relatively new statute, but “the bad guys always come up with new ways of getting around” the law and further legislation may be needed to catch up, Thune said.

“We’re getting short on time” to enact robocall legislation in this Congress, but doing more to address the issue is “clearly a priority for the American people,” said House Communications Subcommittee ranking member Bob Latta, R-Ohio. “People are still being overwhelmed by this stuff” and if current statutes “aren’t working” fully, then “we’ve got to do something else to stop” the calls.

“There’s not a lot of time left” this session for lawmakers to get a package through given the looming start of amplified campaigning ahead of the November midterm elections, said National Consumer Law Center Senior Counsel Margot Saunders. “Anything that goes through would probably have to move via unanimous consent in the Senate, which would mean that it could pass, but on the other hand how effective might it be?” There’s “a lot of sentiment in support of doing something,” but it’s still unclear whether any proposal would get bipartisan support, she said.

Rosenworcel’s bid for enhanced FCC enforcement authority will carry significant weight, but stakeholders are floating a range of other ideas behind the scenes, Saunders said. One proposal that could “gain traction” as part of a consensus package involves “taking the Do Not Call registry and updating it considerably,” including “allowing subscribers to identify what types of automated calls they want to allow without consent.”

Advocates stopped seriously pushing for legislation to expand the narrowed autodialer definition the Supreme Court created in Facebook, which Markey and Eshoo explored in the ruling's immediate aftermath. NCLC “spent quite a bit of time investigating” the potential for a legislative fix for the ruling and “essentially gave up” on that, Saunders said: “There’s too many people on our own side” who backed the top court’s decision, so “we saw it as a nonstarter. We can draft legislation. We can get it introduced. We might even get it heard at a committee meeting. But it’s not going to pass.”

'Popular' but 'Tricky' Fight

Fighting robocalls is a “very popular” for state legislators of both political parties, said Heather Morton, program principal-fiscal affairs, National Conference of State Legislatures. She sent a list of about 80 state bills this year on unsolicited communications. State bills tend to propose increasing penalties for violations or incorporating federal requirements, like following Stir/Shaken protocols, in state law, Morton said: Some aim to specifically protect vulnerable communities like seniors. However, as soon as states pass new laws, “bad actors figure out ways to get around them,” said Morton. “The issue’s not going away. More bills will be coming.”

South Dakota enacted an anti-robocalls bill last month. Other measures advanced recently in states including Hawaii and Oklahoma (see 2203170023) and 2204070027). New York Gov. Kathy Hochul (D) signed anti-robocall bills in November to require telecom companies to block certain numbers and implement Stir/Shaken protocols to validate calls (see 2111080019).

Illinois Senate Commerce Committee Chair Suzy Glowiak Hilton (D) said caller-ID spoofing came to her attention when she and her neighbors kept getting calls that appeared to come from people or businesses they trusted, she said in an interview. Glowiak Hilton is especially concerned about vulnerable seniors, she said. Her bill (SB-2225) to ban spoofing passed the Senate with no opposition last year but hasn’t budged in the House. Enforcement is the “tricky part” with stopping spoofed calls, Glowiak Hilton said. “It’s hard to catch anybody doing it,” and there’s often no financial loss associated with someone receiving an annoying call. With limits to state authority, the federal government must also “step up,” she said.

It’s not “an easy problem to fix,” agreed Illinois Assembly Commerce Committee Chairman Marcus Evans (D). He introduced HB-4598 in January to make caller-ID spoofing a misdemeanor offense. One challenge is not casting the net so wide as to capture cold calling by legitimate businesses, Evans said. His bill might not be the “clear-cut solution,” he said, but he believes proposing state laws is important to raising awareness and prioritizing the issue.

State AGs continue to show wide bipartisan interest in stopping robocalls through enforcement actions and pushing the FCC, said Crowell attorney Clayton Friedman. AGs tend to “up the gas” when federal action slows, but even with the Biden administration increasing focus, state enforcers aren’t letting up, he said. State law enforcement faces jurisdictional barriers, said the lawyer: “The frustration that they see is so many [calls] are coming from overseas.”

“It is regularly the top complaint that my office receives year in and year out,” said North Carolina AG Stein. His office reported receiving 10,011 consumer complaints about telemarketing and robocalls in 2021, out of 28,043 total complaints that year. Stein isn’t alone: Robocalls and “bogus telemarketing” made top-complaint lists for many states last year, said the National Attorneys General Training and Research Institute.

The challenge is that robocallers are “making billions of dollars committing fraud on vulnerable people,” said Stein. “Every time either the regulators or the phone companies … make an advance in our fight against robocallers, they’re going to come up with some counter to go around that because the financial incentives are so great,” said the AG: It’s an “arms race” that will take time to win.

Our interview with Stein was interrupted by a call to him from Palisade, Colorado. He said Verizon flagged it as potential spam.