TCPA Penalties Enhanced under New “DO NOT CALL” Act

new enhanced tcpa penalties

Earlier this Summer, Sen. Catherine Cortez Masto (D-NV) introduced a bill to enhance penalties for illegal robocalls under Telephone Consumer Protection Act (TCPA).

Dubbed the “Deter Obnoxious, Nefarious and Outrageous Telephone (DO NOT) Call Act”, Senate Bill 1913 was cosponsored by Sen. Charles Schumer (D-NY), Sen. Margaret Wood Hassan (D-NH), Sen. Amy Klobuchar (D-MN), and Sen. Kirsten Gillibrand (D-NY).

The legislation would impose strict new penalties for violations of the TCPA, namely it would amend the Act to impose prison terms of up to one year for those who “willfully and knowingly” violate the robocalling provisions of the TCPA and an enhanced penalty of up to three years in prison for “aggravated” violations, specifically where:

  • the individual has previously been convicted under the Act;
  • the violation involves initiating more than: 100,000 calls in a 24-hour period, 1 million calls in a 30-day period, or 10 million calls over one year;
  • the illegal calls were made with the intent to use them in furtherance of a felony or conspiracy; or
  • the offending calls have led to losses totaling at least $5,000 over a one-year period.

The proposed legislation also would bump the maximum TCPA penalties for falsifying caller ID information (sometimes referred to as “spoofing”) to $20,000 per violation from the current $10,000.

As I’ve written ad nauseum on this blog before, TCPA has got to be my least favorite Federal law I’m often hired to help clients try to get into compliance with.

Basically, it’s a ‘90s law that is constantly in catch up mode with technologies and methods its authors never anticipated. While this is hardly unusual for most laws dealing with a given technology, the poor drafting of the Act, less than clear regulations, and lack of readily accessible guidance on the part of the Federal Trade Commission (the agency charged with TCPA enforcement) makes a less than ideal situation even worse.

The fact that TCPA plaintiffs’ class action lawsuits continue to be on the rise further annoys me as someone who represents the sort of legitimate businesses trying to do their best to comply with a very complicated and opaque law.

The proposed bill is a long overdue step in the right direction. I’m hoping it gets a fair debate and a chance at passage. Individuals who occasionally utilize telephone or mobile device marketing and who are legitimately trying to do the right thing should not be lumped in with the egregious violators of the Act, who should be penalized and shut down.

Strengthening the TCPA to boost the prospects of imprisonment, as well as enhanced fines, will hopefully arm the FTC with the additional tools it needs to punish the worst offenders and perhaps even deter businesses (legitimate and otherwise) from considering use of such techniques.

Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a startup, technology, and e-commerce law practice advising founders and management teams on company startup, corporate and technology transactions, e-commerce, as well as Internet privacy concerns. The firm serves corporate and individual clients throughout Arizona, the United States, and internationally. Our offices are conveniently located along the Camelback corridor in Phoenix’s financial district. For more information about our TCPA compliance practice, feel free to reach out using the contact form on the right or call us at (602) 222-5542 to schedule a meeting. Connect with Ben on LinkedIn or Avvo.