REQUIRED READING: Here’s the Text of the Old DO NOT Call Bill–Will the New One be Identical?

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So I was reminded after my last post that the House previously considered H.R. 3810 ahead of the TRACED Act passing. That Bill had the same unfortunate name as the new bill proposed by Senator Masto– the “Deter Obnoxious, Nefarious, and Outrageous Telephone Calls Act of 2019”

I note that the 2019 edition of DO NOT was proposed in the House, whereas the 2021 edition is a Senate bill.

It is unclear, therefore, whether the new Senate bill will mirror the old House bill in all respects, but it is worth taking a look at the old bill for consideration until we have the text of the new bill handy:

SEC. 2. PENALTIES FOR VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT OF 1993.

(a) Criminal Penalties.—

(1) IN GENERAL.—Section 227 of the Communications Act of 1934 (47 U.S.C. 227) is amended by adding at the end the following:

“(i) Criminal Penalties.—

“(1) IN GENERAL.—Except as provided in paragraph (2), any person who willfully and knowingly violates this section shall be imprisoned for not more than 1 year, fined under title 18, United States Code, or both.

“(2) AGGRAVATED OFFENSE.—Any person who willfully and knowingly violates this section shall be imprisoned for not more than 3 years, fined under title 18, United States Code, or both if—

“(A) the person has previously been convicted under this subsection;

“(B) the offense involved initiating more than—

“(i) 100,000 calls in a 24-hour period;

“(ii) 1,000,000 calls in a 30-day period; or

“(iii) 10,000,000 calls in a 1-year period;

“(C) the person committed the offense with the intent to use the calls in furtherance of a felony or conspiracy to commit a felony; or

“(D) the offense caused loss to 1 or more persons aggregating $5,000 or more in value during any 1-year period.

“(3) DEFINITIONS.—For purposes of this subsection—

“(A) the term ‘call’ includes a message or other communication; and

“(B) the term ‘initiate’, with respect to a call, includes the act of sending, making, or transmitting a call, message, or other communication, as applicable.”.

(2) TECHNICAL AND CONFORMING AMENDMENT.—Section 227(e)(5)(B) of the Communications Act of 1934 (47 U.S.C. 227(e)(5)(B)) is amended, in the second sentence, by striking “section 501” and inserting “subsection (i)”.

(b) Increased Penalties For Provision Of Inaccurate Caller Identification Information.—Section 227(e)(5) of the Communications Act of 1934 (47 U.S.C. 227(e)(5)) is amended:

(1) in subparagraph (A)(i), by striking “$10,000” and inserting “$20,000”; and

(2) in subparagraph (B), in the first sentence, by striking “$10,000” and inserting “$20,000”.

Notice how the old House version would criminalize any knowing and willful violation of the statute. Since we have seen knowing and willful violations found in settings where a caller knew it was using technology but did not know that the technology was subject to the TCPA, this bill would put a lot of folks at risk of criminal penalties that might not even see it coming. Really bad stuff–especially from a First Amendment perspective.

Here’s hoping the new bill is a bit more… sane.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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