So I was very critical of the U.S. Senate Subcommittee hearing on robocalls and the TCPA yesterday–and for good reason.
Nonetheless, I woke up this morning and remembered that it is very easy to criticize, but also not very useful. If I am going to chastise others for failing to find solutions then I better be willing to come forward with my own.
All right. Here you go.
This is roughly the testimony I would give to Congress, if and when I am invited to do so.
I. The “Robocall” Problem Is not One Problem But Several–Each Requiring Separate Legislative Treatment
You can never solve a problem you do not understand.
So, let’s start here.
What is a “robocall?”
Listening to testimony yesterday it appears concerns revolve around three main classes of calls: i) scam calls; ii) unwanted marketing calls; iii) misdirected calls of any kind. I note it doesn’t seem to matter how these calls were placed–i.e. whether they are made using a prerecorded voice, AI, text message or even live calling–all calls within these categories appear to be problematic to some degree.
Critically, the source of each of these types of calls is different. And the solutions needed to address them are also different.
- The Solution to Scam Calls Turns On Mandating Carriers to Not Carry Overseas Traffic
Let’s start with the worst calls– scam calls. These calls, by and large, do not start in the United States but arise overseas. The solution to these calls, therefore, will never be the TCPA– the only federal law on the books addressing robocalls–because that law is focused solely on the caller. Yet here the caller is outside of the U.S. and not subject to our laws or jurisdiction.
The only way to legislate an end to scam calls, therefore, is to legislate limits on points of entry into the U.S. telephone network. Critically there is no law that bans, limits, or otherwise directs carriers in terms of how and when they are supposed to prevent traffic from entering the network in the first place. Instead our current model is to allow all traffic in and then use YouMail (and others) to find the bad traffic after the fact and then use the ITG to find out who did it and then complain to the carrier and then take some action–none of which is dictated by law, because there really is no law around it yet (more on that below.)
It may seem bizarre that this is the state of the law, but it is actually the natural consequence of the prevailing philosophy under the Communications Act that existed for 80 years– phone carriers are common carriers who do not discriminate on the basis of the content of calls. (Because, you know, that’s censorship.) That reality is currently hard coded into the American legal system. If you want to change that–i.e. to empower and MANDATE carriers to stop scam calls–you have to CHANGE the law. Very straightforward.
I will note that the FCC as tried to empower carriers to stop unwanted calls, with no direction and no guidance in terms of how the carrier should accomplish this. This has–unsurprisingly–made things much worse (more on this in the last section) and has resulted in mass censorship and call blocking based on the content of speech–which is entirely illegal because Americans enjoy free speech rights. But folks living in other countries do not. So Congress can–and should–ban U.S. carriers from carrying broad classes of traffic originating overseas. Carrying high volume short duration traffic from overseas call centers is not currently illegal–and that is the primary problem.
2. The Solution to Unwanted Domestic Telemarketing Calls Lies Largely in Regulating the Lead Generation Industry
Most legitimate American businesses want to comply with the law, and they do their best to do so. But the law is incredibly complex–and it has MASSIVE gaps.
For instance, under current law it is perfectly legal for a website operator to obtain consent from a consumer–if they draft their website properly–and then sell that consent hundreds of times to companies, each of whom can then use that consent to send robocalls to that consumer. The consent may be sold months or even years after the consumer provided their consent to new and different companies. And that is exactly what happens–day in, day out–and it is perfectly legal under existing law.
It is owing to the practices of the lead generation industry that consumers receive BILLIONS of unwanted telemarketing calls each year from companies who SINCERELY BELEIVE they have the right to contact that consumer and who have paid money for the right to be connected with a consumer who is actually interested in their goods or services.
The telemarketers are not the enemy here– the “consent farms” selling bad leads are. And the sooner Congress figures that out the sooner we can solve this problem.
There are obvious solutions here. And we will get there. But first, let’s address what is NOT the solution.
The unthinking propose to ban the practice of consent transfer altogether– but that is a terrible solution that threatens to end an industry that helps small businesses and consumers find one another in an online environment ripe with fraud and bad actors. Empowering good players in the lead generation industry allows for effective comparison shopping and keeps the internet full of useful information and valuable portals to connect with offers and brands that can help consumers and small businesses alike.
The solution, of course, is to REGULATE the conduct of the lead generation industry. While this is a complex task, mercifully I have already done it for you. Through the work of a trade organization called Responsible Enterprises Against Consumer Harassment (R.E.A.C.H.) good actors in the lead generation space have come forward with proposals to empower consumers with highly transparent forms, strict limits on the number of times leads can be sold, and clear ways for consumers to revoke their consent.
Through effective regulation we can stop roughly a BILLION UNWANTED CALLS A MONTH. All Congress has to do is pass the law mandating the limitations R.E.A.C.H. proposes and 10BB unwanted calls a year stop immediately. This is super easy.
3. The Solution to Misdirected Calls is Requiring the Use of the Reassigned Numbers Database
One final source of unwanted calls–calls intended for somebody else that we receive when we get a new phone number.
This problem already has a solution–it is called the Reassigned Numbers Database. The use of this database allows callers to know if a number has changed hands BEFORE they make a call.
But here is the insane thing– Congress has never mandated that callers actually use the database! It exists. It is a perfect solution. Yet callers do not have to use it.
This is an obvious gap in the law. All Congress has to do to stop ~5 billion misdirected calls a year is to mandate the use of the RND. Again, so so so easy.
II. No, This Is Not Just An Enforcement Issue–More Legislation (Not Just Regulation) Is Needed
Several Senators asked the witnesses at yesterday’s hearing whether further legislation is needed– the answer is absolutely yes.
Under current law–again, just the TCPA–a call is only illegal if it is made a CERTAIN WAY (i.e. using regulated technology) or to a number on the DNC list WITHOUT CONSENT.
A call is not illegal just because it contains lies. It is not illegal just because it comes from overseas. It is not illegal just because a consent record was transferred 6 times and the consumer was not expecting the call. It is not illegal even though the call was made without a caller checking the Reassigned Numbers Database.
All of that must change.
Congress can stop BILLIONS of unwanted calls a year by recognizing:
- The good actors in this country DO want to follow the law;
- The law is NOT sufficiently comprehensive or clear to enable good actors (both carriers and callers) to stop unwanted calls.
So Congress MUST pass legislation:
- Empowering the good carriers in this nation to NOT ACCEPT calls from overseas based on criteria to be determined by policy choices. Again, THERE IS CURRENTLY NO LAW ON THE BOOK ADDRESSING THIS ISSUE. I cannot tell America what the right answer is, but Congress ought to consider: i) an outright ban on carriers permitting high frequency calling arising from overseas call centers; ii) a ban on carriers permitting calls containing lies from overseas call centers; iii) a ban on carriers permitting calls containing any prerecorded or artificial voice messages (regardless of consent) if they arise from overseas call centers. Obvious, obvious stuff. Billions of unwanted calls stopped–and billions of dollars saved by U.S. consumers.
- Adopting the R.E.A.C.H. standards limiting lead generation–or otherwise setting clear rules of the road for companies that connect consumers with businesses through comparison shopping portals and the like. Again, lead generation is the NUMBER ONE source of problematic unwanted marketing calls in the U.S. That industry has never been regulated and there are ZERO laws directed at it. That must change. Another obvious obvious way Congress can help–and stop BILLIONS of unwanted calls every year.
- Mandate the use of the Reassigned Numbers Database by all callers making more than x calls per day, week, year, etc. I leave it to policy makers to decide where the lines should be drawn–but my goodness the fact that the RND exists and companies aren’t mandated by law to use it is INSANE to me. If we are serious about stopping unwanted calls this is the lowest hanging fruit of all.
Once these laws are on the books THEN we can talk about enforcement.
For the record I am COMPLETELY AGAINST the ad hoc, chaotic, messy regulation-by-enforcement approach currently being taken by the FCC, FTC and the DOJ. Completely against it. It is Congress’ job to make the law–set clear rules for the road and THEN the enforcement agencies should step in and make sure those laws are being followed.
Today it is the opposite. There are NO LAWS that stop the traffic outlined above–yet prosecuting agencies are out there running roughshod over the Constitution and due process rights by shoving square peg legal theories into round hole prosecutions that might be rightly guided morally but lack any sound legal basis. THIS MUST CHANGE.
III. This is Not Nazi Germany–The INSANE Censorship and Labeling Being Undertaken by the Carriers Is NOT Helping And Must Be Stopped Immediately
The biggest problem in this country right now that no on is talking about is the absolutely insane censorship of free speech by our nation’s wireless carriers.
The scope of this problem is astounding. Billions of calls and texts are being blocked every year right now–most of the time with no explanation and with no accounting to the caller.
Perfectly legal and consented calls are being stopped every day–based solely upon their content (which the carriers are now openly monitoring.) This is a massive First Amendment problem–especially since the conduct is being directedly mandated by the FCC (so this is DEFINITELY state action).
The Constitution prevents the prior restraint on speech and the licensing scheme that carrier call blocking represents. Worse yet– Congress never gave the FCC the power to allow the carriers to block legal calls to begin with. This entire thing is a castle built upon sand–and it is badly damaging American businesses and further contributing to the distrust in America’s teleco infrastructure.
Right now, today, no call is safe. If you pick up the phone to call your friends, customers, or constituents, the nation’s wireless carriers are listening in and deciding whether or not to allow you to make that call. In some contexts they are issuing “trust scores” to determine how many calls they will let you make that day.
And EVERYONE is at risk of being labeled a “scam” caller–unless you are willing to pay the carrier to verify your identity.
It is absolutely insane out there right now. And there are no standards and no regulations in terms of how the carriers can go about their dastardly censoring/labeling ways.
Congress must act now to stop this before our entire telecom infrastructure collapses and consumers and businesses alike turn to private network and OTT options.
IV. The Czar Can’t Do It All On His Own– Private Industry Experts Should Be Incentivized to Step Up to the Plate
Why am I the only one in America earnestly trying to solve these problems holistically?
Because there is no money in it.
I make zero dollars advocating for R.E.A.C.H. Zero dollars writing blogs like these. Zero dollars running my podcast. Zero dollars on webinars.
I do it because I LOVE THIS COUNTRY. And I want to help it. And I want to see it thrive. And I want to end the robocall epidemic. And I like solving problems. And I was blessed with great powers, and those come with great responsibilities.
And so I do everything I can to help.
But I am the massive exception.
Most people like to be paid for their help. And we SHOULD pay them.
A coalition of private actors should be formed– and paid–to do nothing but actually understand the root causes of the robocall problem and to find solutions. Again, to me it is INSANE that no one has done this yet.
Get a bunch of smart people in the room– I can help pick them!–and see what they can hash out.
Thanks. Hope this helped.
Love you all.