June 21, 2021—The Federal Communications Commission has voted in an amendment Thursday to make it easier for people to submit complaints about suspected robocalls and call spoofing directly to the agency’s enforcement bureau.
Section 10(a) of the Traced Act, which is the agency’s tool to fight unlawful robocalls and spoofed caller ID, was enacted in a vote by the FCC and creates an online portal on the FCC website for individuals to submit information suspicious calls and texts.
The FCC will ask the complainant to provide information as to what ID information is displayed, the phone number, date, time, the complainant’s service provider and description of call or text.
“The new online portal will allow such entitles to alert agency investigators of concerning incidents, including floods of robocalls like those that have been known to clog up hospital lines,” according to an FCC news release.
The portal requires approval from the Office of Management and Budget before it takes effect, which is expected within 30 days.
Congress ordered the agency to develop a streamlined process for private entities about unlawful spoof calling and robocalls.
Commentators suggested that the FCC consolidate the new portal and existing complaint process to better distinguish the two.
With these concerns, the FCC has decided to adopt the SAFE Credit Union’s suggestion to include language that explains its use and helps distinguish the portal from the existing informal consumer complaint process.
The FCC stated in a report that timely and thorough information from private entities is crucial to mitigate robocall incidents and help bring swift enforcement.
Jonathan Marashlian: The Legal Landscape Emerging for Robocalls Under the TRACED Act
The biggest risk is likely to come through enforcement actions by state attorneys general and civil litigation, says Marashlian.
Requirements for voice service providers emerging from the TRACED Act and the Federal Communications Commission orders that followed have changed the risks and threats to voice service providers.
Voice service providers have just passed some major milestones: Certifying SHAKEN and/or robocall mitigation in the FCC database and refusing calls from unregistered upstream providers. Does that mean it is time to kick back and relax?
Not at all. The legal landscape in the new STIR/SHAKEN era is much larger and more diverse than mere technical compliance with FCC requirements.
We are already seeing clear and unmistakable signs that compliance with the bare minimum requirements established by the FCC—implementing STIR/SHAKEN and robocall mitigation plan procedures—is insufficient to mitigate the myriad of business risks arising from the government onslaught against the scourge of illegal robocalling.
Reading the tea leaves, the biggest risk or threat is likely to come through enforcement actions by state attorneys general and civil litigation initiated by private parties. Wherever the legal landscape provides the opportunity to recover damages, class action plaintiff’s lawyers and attorneys for large enterprise consumers of voice services, such as call center operators, are certain to seize upon those opportunities.
‘Know your Customer’ rules come to the telecom industry
We anticipate that questions around the meaning of and extent to which the “Know Your Customer” requirements apply in different contexts will ultimately be answered through litigation and enforcement, and less so through the FCC regulatory rulemaking process. Questions around damages and who is or can be held responsible for originating, passing, or terminating illegal robocalls are also going to be fleshed out by regulatory enforcement and private litigation.
Perhaps the most significant risk, even more so than the FCC, are the federal and state consumer protection laws that are being developed around robocall mitigation. Starting with the Federal Trade Commission (FTC), where the FTC’s strict “known or should have known” standard is applied to hold voice service providers accountable for illegal robocallers using their networks.
Many service providers and telecom consultants pore over FCC regulations to try and understand the requirements. Is that sufficient? Are there other things they need to worry about?
FCC regulations are a good starting point and, telecommunications providers should stay abreast of updated regulations and releases. However, FCC regulatory compliance alone may not be enough to defend an action if provider’s face the FTC and state attorneys general’s “known or should have known” standard or the creative, evolving litigation strategy of the plaintiff’s bar.
Marriott filed a lawsuit in federal court against unknown perpetrators, “John Does,” who made illegal robocalls misusing Marriott’s name. Why would Marriott do that? What’s the point?
This is sheer speculation, but as often turns out, the actual perpetrators who harmed Marriott likely will be insolvent or outside the reach of Marriott. By using “John Does,” Marriott preserves its ability to amend its complaint to implead carriers and providers that carried or transported the fraudulent traffic.
Marriott could rely on the FTC’s “known or should have known” standard to show underlying carriers are the “John Does” that profited from bad actors (now insolvent or extra-judicial). It’s unlikely Marriott would commence this litigation without a strategy outside positive public relations for pursuing bad actions; rather, the “John Does” will likely turn out to be carriers of bad traffic who settle Marriott’s claims.
The Call Authentication Trust Anchor Working Group issued Caller ID Authentication Best Practices, which the FCC published and endorsed as voluntary measures. Then the Fourth Report and Order on Robocall Prevention mandated affirmative obligations to prevent service providers from originating robocalls. It seems like momentum is building toward holding service providers responsible for knowing their customers and the nature of their calls.
Based on recent trends, there is certainly momentum in that direction and Know Your Customer will likely continue to grow in importance. Thus, providers should ensure they have a good KYC policy in place, particularly as new risks emerge, and scrutiny grows. However, as discussed above, this appears largely driven by the FTC and state attorney general actions.
Of note, the Industry Traceback Group in July 2021 published a Policies and Procedures booklet with a best practices section. All voice service providers should review the booklet, and particularly the best practices. Accountability will keep mounting and the weakest link—the weakest KYC policy—will be the first to break, and that provider will be accountable and “holding the bag.”
Jonathan Marashlian is Managing Partner of Marashlian & Donahue, PLLC, The CommLaw Group, a full-service telecom law firm located in the Washington, D.C., area catering to businesses operating in and around the dynamic and diverse communications and information technology industries. Their clients include providers of VoIP, wireless and traditional telecommunications services, SaaS-based and cloud computing technologists and Internet-of-Things application and network vendors. The CommLaw Group has formed a Robocall Mitigation Response Team to help clients achieve the level of compliance needed to avoid the emerging threats of litigation and regulatory enforcement. Jonathan S. Marashlian may be reached by email or by phone at 703-714-1313.
A prior version of this piece was published on October 6, 2021, on TransNexus. This lightly-edited Expert Opinion is reprinted with permission. Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to firstname.lastname@example.org. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
Associations Press FCC to Keep Robocall Extension for Facilities-Based Carriers
Organizations say preponderance of illegal calls don’t come from facilities-based providers.
August 11, 2021 – In submissions to the Federal Communications Commission on Monday, associations representing smaller telecom are asking the agency to keep an extension specifically for facilities-based carriers to comply with new robocall rules.
In May, the FCC voted to push up by a year, from 2023 to 2022, the deadline for small carriers to comply with the STIR/SHAKEN regime, which requires telephone service providers to put in place measures – including analytics services to vet calls – to drastically reduce the frequency of scam, illegal robocalls, and ID spoofing that misleads Americans to believe the call is legitimate. Large carriers, however, had a deadline of June 30 this year.
But in submissions to the FCC this week, the Competitive Carriers Association, NTCA, and USTelecom said the preponderance of illegal robocalls come from smaller providers – those with fewer than 100,000 lines – that don’t have networks and, because of that, facilities-based carriers should have the additional year to comply with the rules, which is reportedly a highly technical and complex endeavor.
To appreciate the effort, providers must tag or label all calls on their network, using analytics tools, to ensure that the calls are legitimate. All illegitimate calls must be tagged as potential spam or blocked completely. Even still, the possibility of “false positives” can occur. Failure to comply with the rules could result in hefty penalties.
‘Good faith’ actors shouldn’t be penalized
“Commenters recognize as well that care must be taken to correctly identify this group of small providers in a surgical and precise manner that does not sweep in innocent actors and compel them to adopt this standard on a timeframe they had neither anticipated nor budgeted for,” the NTCA said in its submission to the FCC on Monday.
“A more targeted and effective way of capturing the parties that prompted these proposals can be found in the record – specifically, the Commission should require operators that are not ‘facilities-based’ voice providers…to adopt STIR/SHAKEN on a more accelerated timeframe,” the NTCA continued.
Burden of proof on non-facilities providers to show need for extension
USTelecom, however, added that the non-facilities-based providers – which generally originate calls over the public internet – should be able to request the full two-year extension, but they must show why they need it.
“It’s also critical that they are required to explain in detail and specificity why their robocall mitigation plans are sufficient to protect consumers and other voice service providers from illegal and unwanted robocalls,” USTelecom said in its Monday submission.
“Such a requirement would offer the right balance between affording non-facilities-based small providers the opportunity for the full extension if truly needed, but without creating an opportunity for the small VoIP providers responsible for illegal robocalls to abuse the process in order to continue to send unsigned illegal traffic downstream to the detriment of other providers and consumers,” USTelecom added.
FCC Proposes Measures to Limit Unwanted Access to Numbers, Protect Against Foreign Entities
The agency proposed rules for public comment on that would further restrict illegal use of numbering resources.
August 9, 2021 – The Federal Communications Commission is seeking comment on proposed rules that it expects will reduce access to phone numbers by those running illegal robocalls and to further enhance public safety by adding transparency measures on foreign providers.
At the August Open Meeting on Thursday, the FCC said it is proposing to require voice-over-internet protocol providers to abide by the new robocalling regime, which requires voice service providers to put in place measures to limit spam calls and ID masking or face severe penalties.
To block calls, voice providers must first gather analytics on the origins of the call and essentially tag its authenticity before its routed.
As of the June 30 deadline, all major U.S. phone companies use caller ID authentication system to label calls as part of the regime, known as STIR/SHAKEN. This allows for end-to-end phone calls to be verified with a now common digital tool. AT&T said in June that is it now labelling over one billion calls a month.
Last week’s meeting also yielded other proposals to safeguard limited numbering resources, “protect against national security risks…and further promote public safety” by adding a layer of oversight at the executive branch level to vet those outside the United States trying to access numbering resources. That includes requiring applicants disclose foreign ownership information.
This would add to the federal government’s approach to protecting national security from foreign entities perceived as threats to the country, including legislation introduced recently that would prevent the FCC from approving those companies with ties to the Chinese communist party.
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