BEHIND BARS: U.S. Senate Considering a Bill Looking to Add CRIMINAL Penalties to TCPA–And Small Businesses May Be in the Cross Hairs

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These guys just don’t get it.

Even after I lay it out for them.

We have a massive robocall problem in this country. The TCPA does not work to stop it. It has never worked. It will never work. But Congress just keeps layering more parts to it.

Its like trying to turn a CR-V into a tank and sending it into Modern Warfare. Its just not equipped to do the job.

In any event, hot off of the dismal subcomittee hearing on the TCPA held earlier this month the U.S. Senate is now considering a bill that would add criminal penalties to the TCPA.

Specifically, S.3324–the “‘Deter Obnoxious, Nefarious, and Outrageous Telephone Calls Act of 2023”–would make it a crime to willfully or knowingly violate the TCPA. (It should be a crime to willfully or knowingly come up with such terrible names for laws.)

The bill provides a one year jail term for a first offense and a three year jail term for repeat offenders and those making illegal calls exceeding 100,000 a week or 1,000,000 in jail.

The bill would also double the penalties for violating the Truth in Caller ID Act provisions of the TCPA–raising penalties from $10k to $20k.

Look I am all for seeing the real bad guys thrown behind bars–and for A LOT longer than one or three years–but given current case law “knowing and willful” standard is far lower than the mens rea required for 95% of crimes.

As a result people accidentally “knowing and willful[y]” violate the TCPA all the time–seems like its impossible but it absolutely is not.

Example: FCC just crushed small business and changed the rules around express consent. MANY folks will not hear about these rules and will go on doing exactly what they were doing before. One day it was perfectly legal, the next day it isn’t. Plus. the rule is far from clear–so even some folks who know about the rule might misinterpret the rule.

But since the “knowing and willful” standard only requires the caller to know the facts regarding the calls and not the law regarding the calls–and since there is no intention to cause harm requirement– a person might be thrown in jail simply for not knowing the FCC changed the rules or for misunderstanding them.

And we’re not talking about scammers here–we’re talking about legitimate American companies (usually small businesses) reaching out to consumers who asked to be called–just not in the right way.

Its bad enough folks like this face predatory lawsuits from class action lawyers who milk them for every penny– not sure why they should face jail time too. Just gross in my view.

The system is broken folks, and its due to a lack of THINKING. And this is just another example.

Luckily this bill seems unlikely to pass. By my count this is at least the 4th time the Obnoxious Bill has been circulated and it never made it to a vote in its previous iterations. I see no reason why this will be any different.

But it certainly underscores the underlying problem–the TCPA is not fit to do the job of stopping unwanted calls and it is high time Congress found something that is.

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Published by Eric "Czar" 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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  1. Just your average mom and pop hard working American small business who is just making 100,000+ plus calls a week, 20,000+ a day, 2500+ an hour, non automated, to consumers who asked to be called. Telephone solicitations have been “knowing and willfully” abusing consumers for decades and this is the consequence of the bed your industry has made. Do I think this will pass, no. Do I think it will solve the problem if it does, no. Should this be a wake up call for the industry, yes. Will it be, not a chance.

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