Wow, just wow.
American businesses that rely on outbound phone calls for consumer engagement cannot catch a break.
We have been covering the massive new FCC ruling clamping down on small businesses that sell and rely upon leads obtained via online webforms, but now Congress has come forward with a proposed bill that would change everything we know about the TCPA.
And it is… a mess.
The fact that Congress is not coming up with good solutions is no surprise given the disastrous Subcommittee hearing on robocalls that took place last October. Czar and I livestreamed the hearing and we were stunned by the paucity of the discussion and the absence of any solutions presented.
We break down the entire hearing for you!
The Czar, of course, took it upon himself to solve the entire robocall epidemic in just a handful of clear and concise legislative proposals that would fix essentially our entire telecom infrastructure. But… no one listened.
Instead Congressman Frank Pallone has come forth with an absurd proposal that would broaden the TCPA’s autodialer definition into an indecipherable Frankenstein’s monster that makes the original definition look like a work of precise elegance.
Here is the definition Congressman Pallone proposes:
‘‘(A) IN GENERAL.—The term ‘robocall’ means a call made or text message sent—
‘‘(i) using equipment, whether hardware, software, or a combination thereof and including an automatic telephone dialing system, that makes a call or sends a text message to—
(I) stored telephone numbers; or
(II) telephone numbers produced using a random or sequential number generator; or
(ii) using an artificial or prerecorded voice or an artificially generated message.”
‘‘(B) LIMITATION.—For purposes of sub paragraph (A)(i), the term ‘robocall’ does not include a call made or text message sent using equipment that requires substantial human intervention to make or send the call or text message.’’;
So umm.. couple of questions.
First, when the definition says “and including an automatic telephone dialing system” does that mean only systems that currently meet the ATDS definition and do the additional steps constitute a robocall or is it meant to simply mean that devices that are currently an ATDS are still included as a robocall even if they do not otherwise meet the requirements set forth in the definition, or does it mean something else?
Second, and obviously, what does “substantial human intervention” mean?
Third, any system that calls stored numbers would include literally every smartphone and software-enabled dialing device right? Like… isn’t everything now a robocall? Help.
The bill also includes penalties for unauthorized AI voice spoofing–which I can get on board with–and also creates a “top 100 robocall campaign” list that looks interesting.
But now look at this. THE FIRST EVER FEDERAL REQUIREMNET FOR AI DISCLOSURE IS INCLUDED IN A TSR MODIFICATION!!!?:
SEC. 203. DISCLOSURE REQUIRED FOR TELEMARKETING
15 USING AI.
(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Commission shall revise the Telemarketing Sales Rule (part 310 of title 16, Code of Federal Regulations) so as to add a requirement that, if a person makes a call or sends a text message with respect to telemarketing and uses artificial intelligence in such call or text message to emulate a human being, such person shall disclose at the beginning of such call or text message the fact that artificial intelligence is being used.
This is absolutely HUGE. If adopted this would be the first disclosure requirement ever adopted at the federal level (and I am not even aware of any state-level requirements of this sort.) Absolutely massive.
The TCPAWorld team will be all over this. Expect a bunch more coverage this week and a redline of the proposed changes tomorrow.
Never a dull moment!
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Thanks for keeping us up-to-date on this! Rep. Pallone had proposed a similar definition of a “robocall” as part of the Stopping Bad Robocalls Act, but it was dropped when the SBRA was merged with Thune’s Senate bill to become TRACED. I agree with you that Pallone’s wording needs some fixes, but the prevailing ATDS loophole isn’t tenable either. The goal with any changes to the TCPA should be to protect companies when they respond in good faith to inquiries or call existing customers, while penalizing the spammers who buy lists from database vendors (or steal them in data breaches!) and blast out automated texts and predictive dialer calls with no pretense of a prior relationship. Seems like it should be easy to do both, yet it has proven so difficult. Now that the TCPA is back on Congress’s agenda, maybe this is an opportunity for R.E.A.C.H. to help shape the new ATDS definition so that we don’t have another decade of litigation about it?
A safe harbor for manually dialed rotary phone calls could be a good add Czar, I’m surprised you didn’t think of that.