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By 2009, Chris Hughson was fed up. The Portland area realtor was getting bombarded with spam texts and calls, as many as 10 a day, despite having his number on the Do Not Call Registry. He assumed his phone number had made it to some list, but he wasn’t sure what else he could do. “There’s got to be a way to strike back,” he thought.
Since then, Hughson, who studied law but never practiced, has filed dozens of lawsuits under the Telephone Consumer Protection Act (TCPA), a law that lets consumers take callers to court if they’re called while on the Do Not Call Registry. Hughson settles cases for amounts he’s often required not to disclose, but, in theory, the TCPA allows consumers to sue for as much as $1,500 per violation. At 10 calls or texts a day, those settlements can add up quickly.
Hughson is stepping into a system that’s already left many Americans frustrated. Washington has tried several tactics to stem the tide of automated calls, from passing the TCPA in 1991 to establishing the Do Not Call Registry in 2003. The Federal Communications Commission (FCC) regularly hands down multimillion-dollar penalties against individual robocallers. But the calls keep coming, and the problem has only gotten worse, leaving targets like Hughson with no choice but to take matters into their own hands.
Researchers say the volume of calls has grown particularly severe in recent years. One private call-blocking app provider clocks them at around 147 million per day in the United States, and the Federal Trade Commission (FTC) and FCC have seen a significant increase in consumer complaints in the past few years. Ian Barlow, the FTC’s Do Not Call Program Coordinator, told The Verge the agency is fielding an average of about 500,000 complaints a month.
The issue is the ease of becoming a robocaller. Anyone with a minor amount of technical ability can run their own system by downloading the relevant software. “The technology is widely available,” Barlow says. “There’s basically no barriers to entry in this market.”
The cost of doing business with that tech is also extraordinarily low: a caller might only pay a fraction of a penny per minute, and that’s only for calls that are actually answered. There’s no immediate financial hurdle preventing a company from running a system, and if even a tiny percentage of people called respond positively to the caller’s message, it was likely worth it. “You can dial all of DC for, I don’t know, $5,000 or $10,000, probably,” Barlow says. There are, of course, legal limits on how callers can operate. Any scams are barred, and telemarketing calls from a pre-recorded or artificial voice generally require express consent from the person being called.
The FTC, as a law enforcement agency, brings lawsuits under state and federal laws, including the TCPA, to stop the calls. Barlow points to more than 100 lawsuits the agency has brought against callers, and he notes that the agency has also promoted products like apps that consumers can use to block calls. Still, for many, the calls continue: the Do Not Call Registry was meant to preemptively stop calls, but if marketers are already breaking the rules, it’s unlikely the list will stop them.
Ajit Pai, as chairman of the FCC, the other agency in charge of tackling robocalls, has said the issue is a cornerstone of his tenure. In one major move, the agency recently announced an $82 million fine against a caller. According to the agency, the marketer used spoofing technology to fake caller IDs, then made more than 21 million calls to sell health insurance. The FCC noted it was one of the largest forfeitures ever imposed by the agency. (The marketer has denied wrongdoing to the agency.)
For Pai, the fine was an example of the agency’s crackdown on the robocalling menace. Under Pai’s leadership, the agency has also touted the passage of rules that allow carriers to block calls from phone numbers that are likely fraudulent, either because the number isn’t used for outgoing calls or it shouldn’t be able to make outgoing calls. Pai has also supported a call authentication “framework” for carriers that could cut down on spoofed calls, where a caller might deceptively steal the first handful of digits from a number in an attempt to pass themselves off as a neighbor. But as of this week, Pai said in a statement that he was “calling on those [carriers] falling behind to catch up.”
Still, Pai, who has presided over an FCC that consistently pushes deregulatory measures, has also expressed skepticism over other tools meant to help consumers. Pai has suggested that the TCPA, meant to give consumers a way to legally combat the callers, has been overused, and has pointed to cases that he argues are excessively litigious. But consumer advocates have argued that strong rules under the TCPA are a crucial protection.
The issue has recently turned urgent. The FCC has been considering how to best define the concept of an “automated telephone dialing system,” and that definition is currently “up in the air,” says Margot Saunders, senior counsel of the National Consumer Law Center. That potentially makes it more difficult for consumers to legally fight the calls. In the past year, federal court decisions have questioned exactly which systems the definition applies to, and the FCC has been seeking comment on what a new definition should look like — opening the door for a system that’s substantially more beneficial to callers, who have been pushing for a more marginal definition that could allow them more leeway to make calls.
The FCC did not respond to a request for comment, but Pai has seemed very open to rethinking the rules. After a federal court moved to strike down an expansive definition earlier this year, he praised the ruling in a statement and slammed the previous Democratic administration for its regulatory policy. “Instead of sweeping into a regulatory dragnet the hundreds of millions of American consumers who place calls or send text messages from smartphones, the FCC should be targeting bad actors who bombard Americans with unlawful robocalls,” he said.
But even Hughson, who’s used the law to become a scourge to callers, hasn’t been safe. And while it’s hard to see the potential effect, changes to the definition could hamper his suits in the future. The calls keep coming, year after year, many with numbers from his area code. Lately, it’s been calls offering him “free” vacations and Walmart gift cards. “I think I got that this morning,” he says.
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