Implementing the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act
| Published date | 26 June 2020 |
| Citation | 85 FR 38332 |
| Record Number | 2020-11252 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
Federal Register, Volume 85 Issue 124 (Friday, June 26, 2020)
[Federal Register Volume 85, Number 124 (Friday, June 26, 2020)]
[Rules and Regulations]
[Pages 38332-38334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11252]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[DA 20-460; FRS 16754]
Implementing the Pallone-Thune Telephone Robocall Abuse Criminal
Enforcement and Deterrence Act
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission adopts final rules, as
required by the Pallone-Thune Telephone Robocall Abuse Criminal
Enforcement and Deterrence Act (TRACED Act), to enhance penalties and
provide additional time for the Commission to pursue entities that
violate the restrictions on robocalls. The TRACED Act directed the
Commission to prescribe implementing regulations in accordance with
section 3 of the TRACED Act within 270 days after enactment.
DATES: The rule is effective July 27, 2020.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Kimbarly Taylor of the Telecommunications Consumers
Division, Enforcement Bureau, at [email protected] or (202) 418-
1188.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order,
DA 20-460, adopted on May 1, 2020 and released on May 1, 2020, which is
the subject of this rulemaking. The full text of this document is
available for public inspection during regular business hours in the
FCC Reference Center, 445 12th Street SW, Room CY-A257, Washington, DC
20554, or online at https://docs.fcc.gov/public/attachments/DA-20-460A1.pdf. To request this document in accessible formats for people
with disabilities (e.g., Braille, large print, electronic files, audio
format, etc.) or to request reasonable accommodations (e.g., accessible
format documents, sign language interpreters, CART, etc.), send an
email to [email protected] or call the FCC's Consumer and Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. In crafting the Pallone-Thune Telephone Robocall Abuse Criminal
Enforcement and Deterrence Act (TRACED Act), Congress acknowledged the
need for enhanced penalties and additional time for the Commission to
pursue entities that violate the restrictions on robocalls. In this
Order, the Federal Communications Commission (Commission) adopts final
rules to implement section 3 of the TRACED Act (Section 3).
2. Accordingly, this Order amends section 1.80 of the Commission's
rules. We move directly to an order here because implementation of
Section 3 entails no exercise of our administrative discretion and,
therefore, notice and comment procedures are unnecessary under the
``good cause'' exception to the Administrative Procedure Act (APA).
3. Section 227 of the Communications Act of 1934, as amended (the
Communications Act) is designed to protect consumers from unsolicited,
unlawful calls by restricting autodialed or pre-recorded message calls
and unsolicited facsimiles, and by minimizing transmission of
misleading or inaccurate caller ID information. Section 227 of the
Communications Act is known as the Telephone Consumer Protection Act
(TCPA).
4. Section 227(b) restricts calls using an automatic telephone
dialing system or an artificial or prerecorded voice. It prohibits
calls to residential phones if the call uses an artificial or
prerecorded voice message, unless the called party consents or the call
is for an emergency purpose. Absent coverage by a relevant exception,
such practices are known colloquially as illegal ``robocalling.'' The
provision also prohibits unsolicited advertisements to facsimile
machines unless the party receiving the facsimile has a preexisting
business relationship with the sender, has consented to receive the
facsimile, or has agreed to make available its facsimile number for
public distribution.
5. Section 227(e), also known as the Truth in Caller ID Act,
prohibits ``caus[ing] any caller identification service'' in connection
with any voice service or text message service to ``knowingly transmit
misleading or inaccurate caller identification information with the
intent to defraud, cause harm or wrongfully obtain anything of
value[.]'' Such practices are known colloquially as ``spoofing.''
6. Section 3 of the TRACED Act amends section 227(b) of the TCPA in
several respects. First, it removes the requirement that the Commission
issue a citation, or warning, pursuant to
[[Page 38333]]
section 503(b)(5) of the Communications Act before the Commission may
propose a monetary forfeiture under section 227(b). Second, Section 3
prescribes an additional potential monetary penalty for violations of
section 227(b) if the Commission determines that the person violated
section 227(b) ``with the intent to cause such violation.'' Third,
Section 3 sets a four-year statute of limitations period in which the
Commission may take enforcement action against intentional violations
of section 227(b); previously the statute of limitations was one year.
Fourth, Section 3 sets a four-year statute of limitations period in
which the Commission may take enforcement action against violations of
section 227(e); previously the statute of limitations was two years.
7. We amend section 1.80 of our rules to implement Section 3.
First, consistent with the amendments that Section 3 makes to section
227(b) of the Communications Act, we amend section 1.80 of our rules to
provide that the Commission may in the first instance impose a penalty
against any person or entity that violates Section 227(b), as amended.
The TRACED Act removes the requirement that the Commission must first
issue a citation to any person or entity that violates section 227(b)
if that person or entity not hold any license, permit, certificate, or
other authorization issued by the Commission, or is not an applicant
for any license, permit, certificate, or other authorization issued by
the Commission.
8. Second, we amend section 1.80 of our rules to augment existing
penalties for those violators that commit intentional violations of
section 227(b). Under the amended rule, the Commission has the
authority to impose a penalty of up to $10,000 per intentional unlawful
robocall in addition to the forfeiture penalty amount that may be
proposed under section 503(b) of the Communications Act.
9. Third, we amend section 1.80 of our rules to extend the statute
of limitations period to four years for intentional violations of
section 227(b). By extending the enforcement period for intentional
violations, Congress granted the Commission additional time to pursue
violators that intentionally violate laws restricting the use of
prerecorded or artificial voice messages and/or automatic telephone
dialing systems.
10. Fourth, we amend section 1.80 of our rules to extend the
statute of limitations period to four years for violations under
section 227(e) of the Act.
11. Consistent with previous decisions, we amend our rules as set
forth above without providing for prior public notice and comment. Our
action here is largely ministerial because it simply effectuates
regulations established by legislation and requires no exercise of
administrative discretion. For this reason, we conclude that prior
notice and comment would serve no useful purpose and are unnecessary.
We therefore find that this action comes within the ``good cause''
exception to the notice and comment requirements of the APA.
12. The Enforcement Bureau is responsible for, among other things,
rulemaking proceedings regarding general enforcement policies and
procedures. In the TRACED Act, Congress mandated the Commission to
prescribe implementing regulations for Section 3 within 270 days after
enactment. Therefore, action on delegated authority is properly taken
in this Order amending section 1.80 of our rules, which is part of the
Commission's general enforcement policies and procedures. In addition,
because a notice of proposed rulemaking is not required for these rule
changes, no regulatory flexibility analysis is required.
13. Paperwork Reduction Act of 1995 Analysis. The Order does not
contain proposed information collection(s) subject to the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, therefore, the
Order does not contain any new or modified information collection
burden for small business concerns with fewer than 25 employees,
pursuant to the pursuant to the Small Business Paperwork Relief Act of
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
14. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this rule is non-major
under the Congressional Review Act, 5 U.S.C. 804(2). The Commission
will send a copy of this Order in a report to be sent to Congress and
the Government Accountability Office, pursuant to 5 U.S.C.
801(a)(1)(A).
15. Accordingly, it is ordered, pursuant to sections 4(i), 4(j),
and 227 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 227, sections 0.111(a)(22) and 0.311(a)(1) of the
Commission's rules, 47 CFR 0.111(a)(22), 0.311(a)(1), and section 3 of
the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and
Deterrence Act, Public Law 116-105, 133 Stat. 3274, that this Order is
adopted.
16. It is further ordered that section 1.80 of the Commission's
rules, 47 CFR 1.80, is AMENDED as set forth in the Appendix below.
17. It is further ordered that this Order and the foregoing
amendments to the Commission's rules shall be effective thirty (30)
days after the date of publication in the Federal Register. It is
further ordered that the Enforcement Bureau shall coordinate with the
Commission's Consumer & Governmental Affairs Bureau, Reference
Information Center, TO SEND a copy of this Order to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 1
Administrative Procedure, Penalties.
Federal Communications Commission.
Lisa Gelb,
Deputy Chief, Enforcement Bureau.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 1 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note,
unless otherwise noted.
0
2. Amend Sec. 1.80 by:
0
a. Revising paragraph (a)(4);
0
b Redesignating paragraphs (b)(5) through (9) as paragraphs (b)(6)
through (10).and adding a new paragraph (b)(5);
0
c. Revising paragraph (c)(3);
0
d.Redesignating paragraph (c)(4) as (c)(5) and adding a new paragraph
(c)(4); and
0
e. Revising paragraph (d) introductory text.
The revisions and additions read as follows:
Sec. 1.80 Forfeiture proceedings.
(a) * * *
(4) Violated any provision of sections 227(b) or (e) of the
Communications Act or of the rules issued by the Commission under
sections 227(b) or (e) of that Act; or
* * * * *
(b) * * *
(5) Any person determined to have violated section 227(b)(4)(B) of
the Communications Act or the rules issued by the Commission under
section 227(b)(4)(B) of the Communications Act
[[Page 38334]]
shall be liable to the United States for a forfeiture penalty
determined in accordance with paragraphs (A)-(F) of section 503(b)(2)
plus an additional penalty not to exceed $10,000.
* * * * *
(c) * * *
(3) In the case of a forfeiture imposed under section 227(e), no
forfeiture will be imposed if the violation occurred more than 4 years
prior to the date on which the appropriate notice was issued.
(4) In the case of a forfeiture imposed under section 227(b)(4)(B),
no forfeiture will be imposed if the violation occurred more than 4
years prior to the date on which the appropriate notice is issued.
* * * * *
(d) Preliminary procedure in some cases; citations. Except for a
forfeiture imposed under sections 227(b) and 227(e)(5) of the Act, no
forfeiture penalty shall be imposed upon any person under this section
of the Act if such person does not hold a license, permit, certificate,
or other authorization issued by the Commission, and if such person is
not an applicant for a license, permit, certificate, or other
authorization issued by the Commission, unless, prior to the issuance
of the appropriate notice, such person:
* * * * *
[FR Doc. 2020-11252 Filed 6-25-20; 8:45 am]
BILLING CODE 6712-01-P
