This blog post summarizes recent telemarketing developments emerging at the federal level and from Missouri, Wisconsin and West Virginia.

Federal Legislation

On January 29, 2024, Congressman Frank Pallone (D-NJ), Ranking Member of the U.S. House Energy and Commerce Committee, introduced H.R. 7116, the “Do Not Disturb Act.”  A press release accompanying the bill’s introduction stated that Congressman Pallone introduced the bill “to protect consumers from the bombardment of dangerous and unwanted calls and texts that have been exacerbated by the Supreme Court’s decision in Facebook, Inc. v. Duguid . . .”  If enacted, the bill would, among other things, do the following:

  • “Robocall” Restrictions.  The bill would replace the definition of “automatic telephone dialing system” under the Telephone Consumer Protection Act (TCPA) with “robocall,” which would be defined as a call made or text message sent ‘‘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 stored telephone numbers; or telephone numbers produced using a random or sequential number generator” or “using an artificial or prerecorded voice or an artificially generated message.”  The bill would exclude from the definition calls or texts made “using equipment that requires substantial human intervention to make or send the call or text message.”
  • Disclosures for Robocalls using AI.  The bill would require that “a person making a robocall [that] uses artificial intelligence to emulate a human being . . . disclose at the beginning of the call or text message the fact that artificial intelligence is being used.”
  • Penalties for Violations Involving AI Voice or Text Message Impersonation.  The bill would double the maximum forfeiture penalty or criminal fines for violations of the TCPA that involve making a call or sending a text message that “uses artificial intelligence to impersonate an individual or entity with the intent to defraud, cause harm, or wrongfully obtain anything of value.”
  • Obligations for VoIP Service Providers.  The bill would direct the Federal Communications Commission (FCC) to promulgate regulations that require providers of interconnected and non-interconnected Voice over Internet Protocol (VoIP) service to “verify the identity of each customer and monitor” and “analyze traffic on the service” to determine if any customer “has engaged or is engaging in a pattern or practice of making robocalls.”  If a VoIP provider determines that a customer may be doing so, it must conduct an investigation to determine if a violation is being committed.  If the provider finds evidence of a violation, it must “take affirmative, effective measures to mitigate the origination and transmission of such robocalls” and submit a public report to the FCC’s Robocall Mitigation Database.
  • Robocalling-Blocking Service.  The bill would direct the FCC to promulgate regulations that require that providers of voice service offer robocall-blocking service to each customer at no additional charge. 
  • Telephone Solicitations.  The bill would revise the definition of “telephone solicitation” to calls or text messages for the purposes of “deception, fraud, or wrongfully obtaining anything of value” or “encouraging the purchase, sale, or rental of, or investment in, property, goods, or services, including referral or hiring services,” subject to certain exemptions.

Missouri

On January 31, 2024, Missouri state Representative Mitch Boggs (R-157) introduced H.B. 2603, the “Caller ID Anti-Spoofing Act.”  If enacted, the bill would do the following:  

  • “Caller Identification Spoofing” Offense.  The bill would prohibit callers from “enter[ing] or caus[ing] to be entered false information into a caller identification service with the intent to deceive, defraud, or mislead the recipient of a call” or “plac[ing] a call knowing that false information was entered into the caller identification service with the intent to deceive, defraud, or mislead the recipient of the call.”
  • Definitions.  The bill defines “call” as “any telephone call, facsimile, or text message made using a public switched telephone network, wireless cellular telephone service, or voice-over-internet protocol (VoIP) service that has the capability of accessing users on the public switched telephone network or a successor network.”  The bill defines “caller” as “a person or entity who places a call, facsimile, or text message, whether by phone or computer.”  “Caller identification service” is defined as “any service or device designed to provide the user of the service or device with the telephone number or other origination information of a call or facsimile transmission made using a telecommunications service or an interconnected VoIP service or of a text message sent using a text messaging service.”  “Caller identification service” includes “automatic number identification services.”
  • Exceptions.  The bill would create a number of exceptions, including “the blocking of caller identification information,” and law enforcement, federal intelligence or security agencies, and communications service providers, that “(a) act[] in the communications service provider’s capacity as an intermediary for the transmission of telephone service between the caller and the recipient; (b) provide[] or configure[] a service or service feature as requested by the customer; (c) act[] in a manner that is authorized or required by applicable law; or (d) engage[] in other conduct that is necessary to provide service.” 

“Caller identification information” is defined as “information provided by a caller identification service regarding the telephone number or other origination information of a call or facsimile transmission made using a telecommunications service or an interconnected VoIP service or of a text message sent using a text-messaging service.”

  • Penalty.  The bill would make commission of the “caller identification spoofing” offense a Class E felony.
  • Enforcement.  The bill would create a private right of action for recipients of any call in which a caller used false caller identification information and authorize those recipients to seek actual and punitive damages against the caller.  The bill authorizes recipients to “bring action under this section as a member of a class.”  It further authorizes the state attorney general to initiative legal proceedings or intervene in legal proceedings on behalf of call recipients and recover all costs of the investigation and prosecution if the caller is found guilty.

Wisconsin

On January 25, 2024, the Wisconsin Assembly passed S.B. 531, which would amend the state’s telephone solicitation statute to prohibit “knowingly transmit[ing] a misleading or inaccurate caller identification record through a telephone call or text message with the intent to defraud or wrongfully obtain anything of value, including personally identifiable information,” among other things.  The state Senate passed the bill on January 16, 2024.  The bill is expected to be sent to the governor’s desk, which would be the final step before enactment.  You can read more about the bill on our blog here.

West Virginia

On January 18, 2024, a group of West Virginia House members introduced H.B. 4886, which would amend the state’s telemarketing statute to establish “a $1,000 civil administrative penalty, to be levied by the Department of Tax and Revenue, per instance when a phone company knowingly allows a telemarking campaign to call a resident of this state using a United States or West Virginia-based phone number, with no ability for an individual to call that company back at that number and speak to a representative of the company.”

The bill would exempt “registered call centers in the United States, or foreign call centers who contract with a company registered in the United States.”

The bill’s legislative findings state that “the West Virginia Legislature finds that the problem of phone companies permitting telemarketing phone calls with no ability to call back the company has been increasing” and that “[p]hone companies in this state should allow an individual to call telemarking companies back at the number where the call originated and speak to that telemarketing campaign’s representative.”

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Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Andrew Longhi Andrew Longhi

Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Technology and Communications Regulation Practice Groups.

Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial…

Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Technology and Communications Regulation Practice Groups.

Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial transactions involving personal information and cybersecurity risk, and responses to regulatory inquiries.

Andrew is Admitted to the Bar under DC App. R. 46-A (Emergency Examination Waiver); Practice Supervised by DC Bar members.