(KAKE) - Yesterday, KAKE told you about the rise in spam and robocalls and the fact that they seem to be more prevalent than ever before. Today, let's look at why those calls are becoming more numerous and what the government has done in an attempt to stop them.

If people are overwhelmed by spam calls that are violations of the Telephone Consumer Protection Act (TCPA), why can't they just sue?

The answer will frustrate you.

"Federal courts have used a decision called Spokeo to curtail TCPA lawsuits," said attorney Scott Owens, a litigator who specializes in these kinds of cases. "Spokeo held you can't go into federal court for just a violation of federal law."

The 6-2 decision by the U.S. Supreme Court in Spokeo Inc. v. Robins has had broad implications in the rise of spam robocalling. Spokeo has come to mean that you can’t sue an illegal telemarketer just because you are annoyed with the calls. The person bringing the lawsuit to federal court has to be injured, which makes it much harder to build a case against telemarketers who are doing flagrantly illegal things that rarely injure people. 

Can a person sue in state court, then?

According to Owens, the answer is still no. Many states follow the same “injury” standard as federal courts, and many states have a bar on bringing purely statutory violations to class actions. So, even if a furious, very determined person tries to sue a telemarketer to the full measure of the law, the best outcome will be a paltry $1500. It usually costs more to retain the lawyer. Even if these spam callers are caught, there’s nothing stopping them from closing down one operation and immediately starting another.

"Calls are cheap," Owens said. "It's easy to set up one of these operations if you have a little bit of money."

In February of 2018, a motion was made to the Supreme Court to review the Spokeo case, based on an estimation by YouMail that 2.75 billion spam calls were being made to U.S. phones every month. The Supreme Court declined to review the case.

By March, the number of monthly robocalls was up to 3.16 billion, then 4.06 billion by May, 4.41 billion by September, and rising to 5.11 billion by October. The gloves were off.

"Our best guess is the scammers realized they could scale," Quilici said. Over the course of 2018, more gateway carriers launched. Some callers who had been placing a million calls per month upped to 20 million. Volumes exploded.

Why can't the government stop them?

In a nutshell, taking out robocallers is like playing a sadistic game of whack-a-mole. No matter how hard you hit one, others pop up.

The government has attempted to deal with robocallers in the past. In 2013, the FTC offered a $50,000 prize for the best overall solution to blocking illegal robocallers. 

Foss knows a lot about the government's war on robocallers. In 2013, with their backs to the wall after a grueling, losing fight against surging robocalls, the FTC threw out the gauntlet, offering a $50,000 prize for the best overall solution to blocking illegal robocalls. One of the pair of winners, beating out nearly 800 other ideas, was Aaron Foss, creator of Nomorobo.

At that point, The FTC has been waging a war on robocallers for almost 20 years. They began by going after the robocallers themselves, though this presented huge problems because they were often offshore and tended to be small operations with low overhead. A single person can be responsible for 100 million robocalls, and it's impractical to go after all of them.

So next, the FTC began going after the companies that hire them. They went after alarm companies fueling spam calls in 2014, and secured a $1.1 billion judgment from Caribbean Cruises in 2017.

Next, they began to go after the gateway carriers that bring the calls onshore, and the people who develop the technology that allows for illegal robocalling. On this front, they have had considerable success lately.

For example, look at the gateway carriers who were cracked down upon in April and May of 2020.  According to the FTC and FCC, the calls were promoting bogus free test kits and HVAC cleaning services, targeting desperate Americans amid the initial uncertainty of the coronavirus pandemic. Those robocalls were originated by two companies: VoIPMax in The Philippines and Oberlo Peer BPO in Pakistan. Their action targeted three gateway providers — SIP Join of Virginia, Connexum of California, and VoIP Terminator of Florida — who the feds said got those calls into the US and into the phone system.

Maybe you’ve never heard of these companies,  but the fact that anyone, anywhere can pretty much get a telephone call into the system without a great deal of difficulty or cost means that it takes just one bad apple to spoil the entire telecommunications barrel.

Taking down just one entity can have a drastic impact, as seen in the 2018 FTC complaint against Jamie Christiano and the company TelWeb, which the agency said was responsible for creating and hawking "a computer-based telephone dialing platform" behind billions of illegal robocalls.

Last year, the DOJ launched cases against three individuals and five companies  — Ecommerce National, SIPRetail, Global Voicecom, Global Telecommunication Services, and KAT Telecom — who they say were gateway carriers, bringing in hundreds of millions of fraudulent robocalls.

A considerable dent was made in the volume of calls, with the DOJ claiming that two of those companies carried 720 million calls in just 23 days, with 425 million of them lasting less than one second. An earlier FTC bust of SBN Peripherals in 2012 found that one company carried out 2.6 billion outbound calls over a 20-month period, a volume of annoyance that led to 12.8 million people — about one half of one percent of the overall call volume — being connected to a sales agent.

Still, all it takes is one server and a little bit of money.

2021 will be a big year in deciding the fate of robocalls for three reasons — one technical, one financial, and one legal. Tomorrow, we will explain the latest in the effort to end spam/robocalls and how you can stop some of these calls.