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Congress is getting ready to criminalize robocalls

In a House Committee hearing on robocalls last week, lawmakers on both sides of the aisle found common ground in their disgust over the current state of affairs.

Joined by four robocall experts representing consumer groups, the telecom industry, a hospital, and an anti-robocall app, lawmakers met to figure out how to tackle the plague of robocalls that has tormented everyone with a mobile phone.

Though the FCC and the private sector have been working on solutions, lawmakers are ready to pick up their swords as well. As Rep. Mike Doyle (D-PA), who led the hearing put it, robocalls are rendering the phone system obsolete.

Patrick Halley of USTelecom, a trade group that represents scores of phone companies, suggested punishment beyond civil enforcement efforts currently in place, especially given the criminal activity involved in robocall scams that seek to defraud people.

FILE - This Aug. 26, 2015, file photo shows an Apple iPhone with a cracked screen after a drop test at the offices of SquareTrade in San Francisco. In a new service offered by Dish, technicians will start making house calls to replace iPhone batteries and broken screens. Dish plans to extend the service to Android phones later. The new program represents Dish’s latest effort to diversify its business as it faces a decline in TV subscribers. (AP Photo/Ben Margot, File)
The volume of robocalls have angered the American public for quite some time. (AP Photo/Ben Margot, File)

“There is an acute need for aggressive criminal enforcement against illegal robocallers at the federal and state level,” Halley told the lawmakers, saying that many of the people who get caught are recidivist robocallers. “Those who blatantly disobey the law and who enable fraudulent activity need to go to jail,” he said.

Part of the reason for the pivot to more criminal enforcement: The fines are not working as a deterrent. Not only has the robocall volume increased significantly, but the amounts collected through fines are appallingly small. Though the FCC has issued over $208 million in fines since 2015, it collected just $6,790, or 0.003% of the total.

Efforts to crack down are picking up steam, however. Many of the bills sitting in front of lawmakers now have provisions for lengthening the statute of limitations for robocalling to at least a few years from one, and a bill passed a Senate committee that would ramp up the prosecution of criminal robocalls.

Though lawmakers do not enforce the laws or make prosecutorial decisions, the extra time provided could be a key difference for U.S. Attorneys and regulatory agencies like the FCC and FTC, which would need to work together — potentially with the help of the private sector’s Traceback Group. (The group has already managed to cut down the time it takes to track down the origins of a robocall from weeks to days or even hours.)

There are good reasons for taking robocalls more seriously. In the case of Adrian Abramovich, who was slapped with a $100 million fine for making 100 million robocalls in three months, the behavior could have cost lives.

In the FCC’s citation against Abramovich, a paging company called Spok said it had its operations disrupted by the Abramovich’s calls, operations on which doctors, nurses, and EMTs rely as a critical communications tool. The calls were also part of a fraud scheme, the FCC citation alleges. Abramovich has not yet been charged with fraud criminally.

Automation causing more problems thanks to robocalls. (AP Photo/John Raoux)
Automation causing more problems thanks to robocalls. (AP Photo/John Raoux)

Speaking in front of Congress this week, Dave Summitt, chief information security officer at a cancer center in Florida, underscored that the stakes reach far past annoyance and irritation: they are “potentially dangerous” and “a serious threat to patient care, in addition to disrupting business operations and facilitating financial fraud,” he said.

Some voice-over-IP company made it possible for scams like Abramovich’s and those of others to work, enabling the robocallers. With respect to the industry traceback group USTelecom has, Halley noted that many telecom companies not in the group “cooperate in good faith,” but “several upstream carriers refuse to cooperate.” As one industry insider told Yahoo Finance, some carriers look the other way when customers partake in illegal robocall activity.

Last April, when asked how easy it is to make robocalls by Sen. Ed Markey (D-MA), Abramovich said a quick Google search of “voice over IP providers short duration calls” will provide multiple options, mostly based in the U.S.

Getting the current solution to work better

Right now, the robocall-weary country is waiting for the private sector to act, driven by trade groups and the business-friendly FCC under Chair Ajit Pai.

The solution? A sophisticated authentication network called STIR/SHAKEN, which verifies calls deemed “legitimate.”

But STIR/SHAKEN is limited by the piecemeal nature of the phone system. Not all phones can handle the new technology — especially old rural lines.

Congress has a number of bills that could facilitate implementation, or press unscrupulous carriers into following best practices. For example, some bills would require carriers to adopt authentication technology like STIR/SHAKEN and to block calls without verification as a default, unless you feel brave and opt out and tell the phone company to just send them all.

The Senate Commerce Committee has already approved similar bipartisan legislation, the TRACED Act, which would require all phone companies to adopt the forthcoming authentication standards. Consumer advocates and smaller phone companies that service rural areas note that older landlines — yes, this would apply to them too! — may have some issues with this and get left behind. And there’s a chance that this might not even be as effective as people hope. Scammers could simply purchase legitimate numbers cheaply and use those until they’re blacklisted.

The TRACED Act, which passed the Senate Commerce Committee in April, would also establish an interagency working group and open up more resources for the prosecution of criminal violations surrounding robocalls.

Other bills being considered would update the Telephone Consumer Protection Act (TCPA) to prevent robocallers from using loopholes, extend the statute of limitations on robocalling, establish a Robocalls Division at the FCC’s Enforcement Bureau, and remove the exception for debt collectors, making their calls illegal too.

Most robocalls are legitimate, which is a big problem

Robocall regulation is complicated by the fact that not all robocalls are scams. For instance, auto-generated calls from your doctor’s office to remind you of an upcoming appointment are fine. Other kinds of robocalls are not necessarily meant to defraud but are a nuisance nonetheless.

Margot Saunders, a consumer group representative, reminded lawmakers that only a minority of unwanted robocalls come from scam calls. The rest of the unwanted robocalls come from debt collectors and telemarketers. (Around 20% of all robocalls are the “wanted” kind — alerts and reminders.)

Saunders laid out numerous examples of legitimate American companies employing robocalls in a ridiculous fashion, violating the TCPA, like a film studio making 3 million unsolicited calls during a six-day film promotion. Additionally, she said, another type of robocall, debt collection calls, make up a large percentage of robocalls — often are made to people who have no connection to the debt. When caught for violating the Do Not Call list, the violators often settle and continue.

Where bipartisanship might stop

The industry has been petitioning the business-friendly FCC to loosen restrictions, which consumer advocates say would cause another spike in robocalls, and companies frequently ask for waivers from the FCC when taken to task in court by annoyed consumers.

A friendly FCC may narrowly define what a robocall is, providing cover for tons of calls people find irritating.

Depending on how laws are interpreted, a person in front of a computer clicking a button that randomly sends a robocall to someone makes it okay — and not technically a robocall. A consumer on the other end wouldn’t likely see it that way.

These loopholes could be closed, if some of the legislation is passed, by having clear definitions with increased imperviousness to interpretations that are too charitable to robocalling operations.

Sanders noted that corporate America is applying heavy pressure on the FCC and courts to interpret the TCPA’s definition of “automatic telephone dialing system” narrowly. If this were to happen, it would cancel prohibitions against unsolicited autodialed calls and texts, she said.

As it stands now, people will have to wait a little longer for the scams to stop. STIR/SHAKEN should gain widespread adoption by large carriers in 2020, and if mandatory adoption of new caller ID standards were to be implemented, there would be a compliance date set 18 months into the future.


Ethan Wolff-Mann is a writer at Yahoo Finance focusing on consumer issues, personal finance, retail, airlines, and more. Follow him on Twitter @ewolffmann.

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