TCPA Regulatory Update – November 2018

Deploy Call Authentication Technology by 2019 or Else, FCC Tells Voice Providers

In letters sent to voice providers large and small by Chairman Pai on November 5 and 6, the Federal Communications Commission (“FCC”) signaled just how serious it was about the deployment of a robust, industry-led call authentication system in the near future. The letters called on voice providers to assist industry efforts to trace scam robocalls that originate on or pass through their networks. The FCC stressed that combatting illegal robocalls is its top consumer priority, and if it does not appear that a call authentication system is on track to get up and running next year, then the FCC “will take action to make sure that it does.”

The fourteen major voice providers who received letters were asked to submit to the FCC, by November 19, their timeline for deployment of a call authentication system for calls that originate or are carried on their network. While the FCC commended some on the steps they have already taken, other major voice providers were singled out as not yet having concrete plans to implement a robust call authentication framework. Those voice providers were also asked to answer a detailed set of questions regarding what is inhibiting their efforts, progress of current tests, work with vendors, etc.

The following day, the FCC also sent letters to eight small voice providers that it determined were not yet participating in industry traceback efforts. The letters urged small voice providers “to cooperate with the USTelecom Industry Traceback Group’s program aimed at identifying the source of illegal robocalls and harmful spoofed calls.” The letters emphasized that neither government nor industry can “stem the flood of scam calls” without the active assistance of voice providers “to ferret out the perpetrators of unlawful call traffic” in their call traffic chain. Small voice providers were asked to respond to the FCC by November 20, explaining the steps they have taken to identify the sources of illegal traffic, as well as the safeguards they have adopted to stem the flow of illegal calls to customers and other voice providers. Several small voice providers were asked a more detailed set of questions that addressed their call blocking practices with regard to the Do Not Originate list and VoIP traffic, and they were also asked to provide the FCC with their marketing materials.

The letters received praise from Commissioner Rosenworcel via Twitter, and prompted several of the voice providers to release statements emphasizing their continued efforts on call authentication. The letters demonstrate that although the FCC would prefer to see effective call authentication efforts originate from industry on a voluntary basis, it may consider taking action if it later determines voice providers have made insufficient progress.

Under the SHAKEN/STIR framework, calls traveling through interconnected phone networks would be “signed” as legitimate by originating carriers and validated by other carriers before reaching consumers. In a technological effort to dramatically reduce spoofed calls, the framework would serve as a digital fingerprint, ensuring that callers are who they say they are.

FCC Eliminates 2006 Solicited Fax Rule

On November 14, the FCC released an Order eliminating the 2006 Solicited Fax Rule, which required opt-out notices on fax advertisements sent with the recipient’s prior express permission or consent. The Order responds to a March 2017 decision by the Court of Appeals for the DC Circuit, which vacated the rule, holding that the FCC does not have the authority to impose it.

In light of the Order, the FCC also dismissed as moot ten pending petitions for retroactive waiver of the rule, as well as two pending petitions for reconsideration concerning violations of it.

FCC Reviews Comments on IHS Markit Petition for Emergency Declaratory Ruling

Comments were due on November 5 on the Petition for Emergency Declaratory Ruling filed by IHS Markit (discussed in last month’s TCPA Digest). The FCC received a handful of comments on the Petition, mostly from automotive interests, including the Association of Global Automakers, Inc. and Alliance of Automobile Manufacturers, the Motor & Equipment Manufacturers Association, and Experian Automotive. Most commenters supported the Petition, which sought a ruling that non-telemarketing calls related to motor vehicle safety recalls are made for emergency purposes, and therefore should be exempt from the TCPA’s consent requirements for autodialed or prerecorded calls to wireless telephone numbers. Commenters emphasized the serious public safety considerations in this case and urged the FCC to grant the petition. Patrick Juneau, special administrator of settlement agreements in the Takata airbag recall, also supported the Petition. One individual comment opposed the Petition, arguing that automotive recalls usually do not signify an emergency.

FCC Continues to Review Comments, Meet with Stakeholders, and Analyze Implications of Marks v. Crunch

Reply comments were due on October 24 in the FCC’s Public Notice seeking comment on how to interpret an “automatic telephone dialing system” in light of the Ninth Circuit’s Marks v. Crunch decision. (See last month’s TCPA Digest for coverage of the initial comments.) The FCC received approximately twenty reply comments, both from parties that had previously filed comments and from new parties to the proceeding. As with the earlier comments, most commenters urged the FCC to narrowly define the terms “ATDS” and “capacity” and reject the Ninth Circuit’s reasoning. However, some commenters, particularly individuals and consumer groups, continued to push for a broader definition, arguing that the Ninth Circuit did not reach the definition of “capacity” in its opinion, and thus there is no direct conflict between Marks and the DC Circuit’s decision in ACA International v. FCC. The Ninth Circuit has declined to rehear the Marks case en banc.

The FCC has also been busy meeting with interested parties to discuss these issues. Recent meetings with FCC staff have included representatives from the health, banking and credit union, and retail industries, among others. Notably, the American Cable Association (“ACA”) asked the FCC to issue a declaratory ruling affirming the ability of voice providers to offer robocall-blocking tools to their customers on an informed and opt-out basis, as long as such tools are made available free of charge. ACA argued that this would give risk-averse voice providers the necessary clarity to deploy these tools, and would combat low opt-in customer participation rates due to inertia. The National Consumer Law Center (“NCLC”) and other consumer advocacy organizations also filed an ex parte to supplement their earlier comments, asking the FCC to adopt the Marks decision’s reasoning but to find that a smartphone – as manufactured – is not an ATDS. NCLC also argued that smartphones as manufactured do not have the present capacity to dial multiple numbers simultaneously or send mass texts. Adopting this position would allow the FCC to preserve a broad interpretation of the TCPA, while avoiding an absurd result subjecting normal uses of smartphones to TCPA liability.

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