The Federal Trade Commission (FTC), under Section 5 of the Federal Trade Commission Act (FTCA), has broad enforcement authority over “unfair or deceptive acts or practices.” It has used this, and other authority to redress deceptive telemarketing, including using automated dialing technologies.

But, in the FTCA, Congress exempted from the agency’s Section 5 jurisdiction “common carriers subject to the Acts to regulate commerce.” As applied, at least with respect to their “common carrier activities” (e.g., carriage of robocalls), telecom service providers are beyond the reach of the FTC under this provision.

There has been any number of unsuccessful overtures to repeal this “common carrier exemption.” Now, three Democratic Senators, Dianne Feinstein (D-CA), Amy Klobuchar (D-MN) and Richard Blumenthal (D-CT) have introduced the Protection from Robocalling Act, tying the need for repeal to combatting illegal robocalls.

According to Senator Klobuchar, the purpose of the bill is to close “a loophole that allows telecom companies that actively facilitate illegal robocalling to escape FTC enforcement.”

Senator Feinstein added, Recently, the FTC in conjunction with 25 federal, state and local agencies announced a nationwide crackdown on illegal robocallers responsible for more than 1 billion illegal robocalls…. We must do more than go after the people making the robocalls, we need to stop the phone services that make this illegal behavior possible. Our bill will give the FTC the tools it needs to do exactly that.”

Referral to the Senate Committee on Commerce, Science and Transportation can be expected. With the solid bipartisan support for robocall enforcement in the Senate, as reflected in the 97-1 vote in favor of the TRACED Act, S.151, perhaps repeal of the “common carrier” exemption has stronger legislative legs this time.

However, immediate Congressional focus will be on reconciliation of the Senate’s TRACED Act and the recently House-approved Stopping Bad Robocalls Act. Reports are that work to do so will be taking place over Congress’ August recess. TCPAWorld will stay tuned.


Leave a Reply