TCPA Regulatory Update: FCC Receives Feedback on its Robocalling Report and Reassigned Numbers Database Proposal

By Russell H. Fox, Radhika Bhat, and Elana R. Safner

It has been a quiet month for TCPA-related business at the Federal Communications Commission (“FCC”), with no major FCC releases addressing the TCPA. The FCC is busy reviewing comments on a number of Petitions on Public Notices, and comments on its Additional Call Blocking Methods Public Notice (reported in our August TCPA Update) are due later this month.

Notable Filings

The FCC’s Report on the State of Robocalling

Several commenters submitted reply comments on the FCC’s Public Notice requesting input for its report on robocalling. Substantive filers included Broadnet Teleservices LLC (“Broadnet”), the ACA International, the American Financial Services Association (“AFSA”), the American Bankers Association (“ABA”), Sirius XM, the USTelecom Association, and Consumers Union and the Consumer Federation of America.

Industry commenters generally agreed that while no “silver bullet” could singlehandedly address the problem, the industry has taken great strides by introducing a variety of tools to help consumers fight unwanted robocalls. They were also concerned with a rise in over-inclusive blocking, which has swept in many legitimate business communications. Broadnet, for instance, has observed a rise in the number of legitimate calls made through its platform that fail to reach their intended audience. AFSA asked the FCC to limit its report to criminal and fraudulent robocalls. ABA and ACA International expressed concerns over incorrectly labeled calls, which could discourage customers from answering legitimate banking and business calls, and ABA encouraged the FCC to create a “white list” of numbers that should not be blocked. ACA International and Sirius XM, among others, asked the FCC to consider adopting standards for responding to inquiries about erroneously blocked calls. Sirius XM also asked the FCC to ensure that call-blocking tools could provide adequate and uniform disclosures regarding blocked calls, as well as mandatory inquiry procedures and timeframes for response. US Telecom supported existing industry efforts, including the implementation of the SHAKEN and STIR authentication standards, and advocated for criminal enforcement against illegal robocallers. Consumers Union asked the FCC to reject efforts to weaken the TCPA and recommended requiring phone companies to provide free call blocking and caller ID authentication services to their customers.

Although consumer advocacy groups agreed with industry commenters that the FCC should establish a system to ensure that consumers can receive wanted robocalls, they urged the FCC to make this system consumer-friendly, rather than one that would allow the industry to circumvent existing call-blocking tools.

Consumer advocacy groups including the National Consumer Law Center (“NCLC”), Consumers Union, the National Association of Consumer Advocates, EPIC – the Electronic Privacy Information Center, and Public Knowledge also met with FCC staff to discuss comments NCLC filed previously in June 2018 on behalf of 41 national and state public interest and legal services organizations. The parties elaborated on the earlier comments in light of recently raised issues.

The NCLC made a number of arguments:

• Unless the FCC adopts a broad definition of an automated telephone dialing system (“ATDS”), text messages will not be covered by the TCPA’s protections as they do not include either a prerecorded or artificial voice;   
• It should not be possible to limit TCPA consent revocation by contract, as argued by some creditors;
• The FCC should finalize and implement the Debt Collection Rule, which, among other things, limits the number of debt collection calls to each debtor to three calls per month;
• The FCC should retain the definition of “called party” under the TCPA to mean the person actually reached by the caller;
• The FCC should revoke the Broadnet ruling, which exempted from certain TCPA provisions calls made by or on behalf of the federal government while conducting official government business.

Reassigned Numbers Database

Industry associations such as CTIA met with the FCC over the past month to discuss issues raised in the D.C. Circuit’s TCPA decision and to urge the FCC to reconsider its proposal to create a reassigned numbers database. CTIA argued that such a database would have “no impact on mitigating illegal, unwanted robocalls” while presenting “significant financial, operational, and technical challenges.” CTIA also encouraged the FCC to adopt a safe harbor for good faith callers. Meanwhile NTCA – The Rural Broadband Association asked the FCC to encourage use of existing commercial reassigned numbers databases, paired with a safe harbor, rather than creating a separate FCC database. NTCA also emphasized the importance of allocating the costs of any database to the primary “cost causers” – companies that need to use a reassigned numbers database to avoid violating federal law, often as part of a for-profit enterprise.

Call Authentication

Finally, the Alliance for Telecommunications Industry Solutions launched its Secure Telephone Identity Governance Authority (“STI-GA”) at the end of August. The group is comprised of industry stakeholders and will issue certificates signaling compliance with SHAKEN/STIR protocols for providing real-time caller authentication to prevent call spoofing.

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