FCC robocall enforcement does little to stop illegal calls, Senate hears

The Federal Communications Commission's attempts to stop robocalls have failed to make a big dent in the problem, according to testimony at a Senate subcommittee hearing today.

The FCC "has been trying to address the problems, but, to date, its methods have not succeeded in achieving a meaningful reduction in these unwanted and illegal calls. Either the FCC 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," said Margot Freeman Saunders, senior counsel for the National Consumer Law Center.

The hearing on robocalls was held by the Commerce Committee's Subcommittee on Communications, Media, and Broadband. Senator Ben Ray Luján (D-N.M.), the subcommittee chair, said that FCC enforcement is ineffective and that Congress should give the agency more power. He mentioned the long-standing problem that the FCC is unable to collect on most of the robocall fines it issues.

"Scammers and fly-by-night companies are stealing American families' hard-earned dollars—using our telecom networks to do so—and don't face any consequences," Luján 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."

"Every month, Americans receive roughly 1.5 billion to 3 billion scam calls and likely illegal telemarketing calls," Luján said.

Luján said that technology used to trick consumers and evade enforcement "is constantly evolving. We will hear testimony that suggests consumer consent for telemarketing is increasingly falsified. Automated bots and other artificial intelligence systems are using public data to consent on behalf of a consumer for calls they never asked for and do not want. Automated robocalls and robotexts are using chatbots and generative artificial intelligence to impersonate a real, live person, lulling the recipient into a false sense of security by mimicking voices and mannerisms."

Saunders told senators that robocall numbers remain high "despite the dozens of new regulations and rulings" issued by the FCC to deploy STIR/SHAKEN Caller ID authentication technology and implement other congressional mandates, and despite "the enforcement actions it has brought against VoIP providers and illegal callers."

FCC wants authority to collect fines

FCC Enforcement Bureau Chief Loyaan Egal provided the subcommittee with a statement for today's hearing. He said the FCC's enforcement efforts include $500 million in fines against robocallers issued this year, and orders that require phone companies to block calls sent by other telcos that don't follow the rules. He said the FCC moves have reduced robocalls, citing a study by the vendor Robokiller that said robocalls to Americans were down by 21 percent year over year in the first half of 2023.

But the FCC says it can do more if given additional authority from lawmakers. Despite increased enforcement power from the TRACED Act approved by Congress in 2019, Egal wrote that Chairwoman Jessica Rosenworcel "has identified two additional fronts where Congress can help the Commission's enforcement efforts."

Rosenworcel wants authority to collect fines without needing to involve the Department of Justice. Egal wrote:

The Commission has the authority to issue a Forfeiture Order for violations of the Communications Act and its rules, but it lacks the authority to pursue collection without involvement from the Department of Justice (DOJ). Since 2018, the Commission has referred eight robocalling forfeiture orders to the DOJ for collection, of which the DOJ is currently pursuing collection for two. The result is that significant sums of ill-gotten gains are potentially left in the pockets of bad actors. With its own authority to collect its fines, the Commission would pursue these cases promptly and aggressively.

The FCC also wants Congress to expand the definition of "automatic telephone dialing system" in the Telephone Consumer Protection Act (TCPA), which protects consumers from calls made using an "automatic telephone dialing system or an artificial or prerecorded voice." Egal wrote:

The TCPA's definition of automatic telephone dialing system has been unaltered since 1991 and needs adjustments to keep pace with the way technology has developed over the last thirty years. Further, in Facebook v. Duguid, the Supreme Court narrowly interpreted "automatic telephone dialing system" to mean equipment that stores or generates numbers randomly or sequentially. Consequently, equipment that simply stores non-random and non-sequential lists of numbers may fall outside the statute. This interpretation makes it harder for the Commission to regulate bad actors manipulating technology to reach massive volumes of consumers, particularly with regards to sending unwanted text messages.