Lujan, Other Senators Frustrated by DOJ Robocall Enforcement Actions; Uneven Bill Interest

Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., and subpanel members from both parties voiced growing frustration during a Tuesday hearing with DOJ’s perceived reticence in enforcing existing anti-robocall statutes and eyed the FCC’s Further NPRM giving consumers more choice on the robocalls and robotexts they will receive (see 2306080043). There was more uneven interest among Senate Communications members and witnesses at the hearing in pursuing additional legislation to address ongoing robocall problems amid those enforcement shortcomings.

Lujan and other senators raised concerns about the potential for bad actors to use generative AI technology to spoof voices in a bid to scam robocall recipients. “Automated bots and other” AI “systems are using public data to consent on behalf of a consumer for calls they never asked for and do not want,” Lujan said. Sen. Amy Klobuchar, D-Minn., said someone she knows recently received a robocall that used AI voice cloning technology to impersonate the person's son, who’s serving in the Marines, “asking for money to be delivered to somewhere in Texas.” Sen. J.D. Vance, R-Ohio, also raised AI-related concerns.

There’s “immense frustration” both on Capitol Hill and in the U.S. at large with the ongoing prevalence of robocalls despite the 2019 Telephone Robocall Abuse Criminal Enforcement and Deterrence Act being successful in significantly decreasing “the number of unsolicited and illegal telemarketing calls,” Lujan said: The FCC “levies fines, but fines go uncollected, and the company dissolves and moves assets elsewhere.” Congress “must empower our regulators and enforcement agencies to ensure that when an individual or a company breaks the law, they are held to account,” he said. Lujan was one of a dozen Senate Democrats who urged the FCC in August to issue guidance restating its existing anti-robocall requirements amid its robotext FNPRM (see 2308080068).

Sen. Deb Fischer of Nebraska, who served as Senate Communications lead Republican in place of ranking member John Thune of South Dakota, believes “we need to ensure that our laws and rules that are on the books are being enforced to the fullest extent.” She blamed DOJ for its “failure to pursue” FCC-referred robocall enforcement cases “in court” and said the department “missed the opportunity to submit a report with meaningful recommendations” required under the Traced Act.

Priorities Shift?

Wiley’s Megan Brown, who spoke on behalf of the U.S. Chamber of Commerce, believes DOJ has “a lot of priorities, they have a lot of people” and “I do think the department can walk and chew gum at the same time and prioritize a few more of these cases.” USTelecom Vice President-Policy and Advocacy Josh Bercu and YouMail Chief Technology Officer Mike Rudolph also emphasized the FCC’s recent efforts to implement the Traced Act and the need for greater DOJ enforcement. National Consumer Law Center Senior Counsel Margot Saunders believes the FCC either “does not have sufficient legal tools to stop these unwanted and illegal calls, or it has not yet determined how to deploy those tools effectively.”

It’s “hard for Congress to direct” DOJ “to take specific action due to separation of powers, but you have a lot of power to nudge, cajole and shape expectations,” Brown said. The Traced Act includes “pretty robust reporting requirements” on the FCC and Congress could similarly “impose those kinds of” requirements on DOJ “to let you all know what they’re doing.” Lawmakers can also direct DOJ to “prioritize funds” for robocall-related investigations and enforcement, she said.

FCC Enforcement Bureau Chief Loyaan Egal defended the commission’s recent enforcement actions but called for Congress to give it the “authority to pursue collection” of fines for violating robocall laws without DOJ involvement. A lack of more aggressive DOJ action on FCC referrals means “significant sums of ill-gotten gains are potentially left in the pockets of bad actors,” Egal said in a letter to Lujan and Thune. The FCC also wants Congress to legislatively reverse the Supreme Court's unanimous 2021 ruling in Facebook v. Duguid, which backed a narrow definition of what constitutes an automatic telephone dialing system under the Telephone Consumer Protection Act (see 2104010063).

Traced Act co-sponsor Sen. Ed Markey, D-Mass., hailed the law as stopping “some of the worst practices by robocallers,” but bad actors “seem to be changing their methods faster than we can adjust” federal statutes. “If the robocallers have evaded the caller ID system by exploiting how phone numbers are distributed, then we may need to adapt our regulations as well,” he said. Markey didn’t mention his previous interest in the Robocall Trace Back Enhancement Act, which would bolster private sector-led work to trace back the origins of illegal robocalls (see 2112080059).

Drop 'the Hammer'

Markey noted interest in working on ways to strengthen the FCC’s robocall mitigation database, citing the Enforcement Bureau’s launch of enforcement proceedings against 20 providers for noncompliance with Stir/Shaken requirements (see 2310160059) by submitting “laughable” plans to the robocall mitigation database that are intentionally blank or otherwise circumvent the commission’s rules. Saunders urged lawmakers to empower the FCC to use “immediate” but temporary suspensions from the database as a mechanism to reduce the number of illegal robocalls.

“It seems like we keep on tinkering around the edges” on the Hill with anti-robocall legislation that may only slow down the problem, Vance said. “We’re fundamentally allowing crooks to prey on some of the most vulnerable people in our country” by not “doing something big” that would likely be one of the few things that could get bipartisan backing.

Vance wanted to know “what could actually stop this,” in part citing the prevalence of so-called “consent farms” that trick consumers into turning over their personal information and then fraudulently claim targeted individuals consented to receive robocalls (see 2307180035). He suggested the U.S. use diplomatic and legal means to “interface with the countries where this is most common,” including India. Bercu noted past collaboration between the FBI and India’s Central Bureau of Intelligence to raid call centers engaging in government imposter scams.

Sen. Jon Tester, D-Mont., was more dubious about the need for new legislation aimed at curbing robocalls amid the lack of DOJ prioritizing enforcement of existing laws. “We can pass all the laws we want here and we can take credit for passing these laws, but unless somebody drops the hammer on these clowns” and makes them face harder consequences, “I think it’s going to continue to happen,” he said.