FCC to Stop Warning Illegal Robocallers Before Issuing Penalties

To enhance consumer protections against illegal robocalls, on May 1, 2020, the Federal Communications Commission (FCC) issued an Order (Order) amending 47 CFR § 1.80 (Section 1.80) of its Telephone Consumer Protection Act (TCPA) rules.  The Order: (i) removes the TCPA’s initial warning requirement prior to issuing penalties for illegal robocalls; (ii) extends the statute of limitations period to four years for the FCC to pursue TCPA violators; and (iii) increases the maximum fine the FCC can propose for robocall violations to $10,000.

These amendments to Section 1.80 run parallel, and in conjunction with, Section 3 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act).  The TRACED Act, which was enacted in December of 2019, made various amendments to the TCPA to combat illegal robocalls and malicious caller ID spoofing, including permitting the FCC to pursue illegal robocallers on a first offense without warning, and extending the statute of limitations against violators.

The FCC’s press release, which accompanied the Order, explains the sentiment behind the amendment, stating that: “Robocall scam operators don’t need a warning these days to know what they are doing is illegal, and this FCC has long disliked the statutory requirement to grant them mulligans… [R]emoving this outdated ‘warning’ requirement will help us speed up enforcement to protect consumers.”

The amendments to Section 1.80 mean that the FCC can now issue penalties and commence enforcement actions against first time offenders without having to first issue a “citation” or “warning,” and without being limited to penalizing or bringing enforcement actions against violations occurring after the issuance of a “citation” or “warning.”  Additionally, the amendments provide the FCC with a four year limitation period to pursue violators that “intentionally violate laws restricting the use of prerecorded or artificial voice messages and/or automatic telephone dialing systems,” instead of the previous two and three year statute of limitations applicable to these types of TCPA violations.  The $10,000 penalty for a violation is in addition to the already included forfeiture penalty amount under Section 3 of the TRACED Act.

In issuing this Oder, the FCC did not engage in public notice or comment procedures, ordinarily required under the Administrative Procedure Act, because the Order’s implementation contains no exercise of administrative discretion by the FCC.  The Order becomes effective 30 days after publication in the Federal Register.

Notably, this Order is the FCC’s most recent step in enhancing consumer protection against unlawful robocalls.  Last year, the FCC provided voice service providers with the authority to automatically enroll consumers for call blocking programs that identify and block unwanted telephone calls under its SHAKEN/STIR framework.  Callers should take the time to verify their calls are in compliance as they could face significant financial penalty without the security of an initial warning that their conduct violates the law.

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