Rosenworcel Calls on Congress for Expanded Robocaller Enforcement Protocols
The chairwoman seeks increased authority over autodialers and the ability for the FCC to take robocallers to court.
WASHINGTON, May 27, 2022 –Federal Communications Commission May 19, Chairwoman Jessica Rosenworcel called for legislation from Congress that would increase her agency’s authority to act against robocallers.
At the agency’s May 19 open meeting, the chairwoman asked for those increased powers to go after autodialers and for the FCC to be given the ability to take robocallers to court after they are fined by the agency – rather than delegating that responsibility to the Department of Justice.
The definition of autodialers is hotly debated, particularly following the Facebook, Inc. v. Duguid ruling of the Supreme Court in April 2021, and which designated autodialers as those robocallers operating from a device that has the capacity to either store a phone number using a random or sequential number generator or to produce a phone number using a random or sequential number generator.
A previously court-held definition of autodialers that others believe to be more accurate stated the only defining criterion for an autodialer is that it must have the capacity to “store numbers to be called” and “to dial such numbers automatically.”
This change in definition by the Supreme Court lessens the FCC’s authority to target autodialers, targeting which is also not provided for by the agency’s STIR/SHAKEN protocols which prevent robocallers from lying to phone owners via caller identification about the station the robocalls originate from.
Rather, the 1991 Telephone Consumer Protection Act governs regulation of autodialers and the court’s narrowing of actors it applies to decreases the FCC’s regulatory jurisdiction.
2019’s Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act further forms the FCC’s framework for enforcement against robocallers and autodialers.
Also at Thursday’s meeting, Rosenworcel said the commission would require gateway providers, the first U.S.-based provider of robocalls that originate internationally, to perform more authentication measures and certify FCC robocall mitigation plans, and highlighted a study which found that a large portion of robocalls come from abroad.
“We can make it more difficult for these illegal and unwanted calls to hit our networks, we will be much closer to winning our fight,” said Rosenworcel.
“By requiring gateway providers to provide more authentication and the SIP calls in the caller I.D. field.”
The commission adopted a further notice of proposed rulemaking seeking comments on non-internet protocol authentication methods.
Earlier Thursday, the commission announced new partnerships with nine state attorneys general to combat illegal robocalls, raising the number of states participating in the effort to 36.
Experts Debate Whether Originating or Terminating Providers Hold Robocall Responsibility
Despite the FCC’s recent expansion of STIR/SHAKEN, some panelists called the framework ineffective.
WASHINGTON, March 22, 2023 — The current industry and regulatory fight against illegal robocall traffic is failing to make a meaningful dent in the problem, but there is not yet consensus about a better approach, according to experts at a Broadband Breakfast Live Online event on Wednesday.
“Robocalls have completely undermined the value of the U.S. telephone system,” said Margot Saunders, senior attorney at the National Consumer Law Center. “The system is losing value and that’s hurting all of us — especially businesses and health professionals who are trying to reach people in health emergencies.”
In addition to being an annoyance, fraudulent robocalls are expected to cost mobile subscribers more than $58 billion in 2023 alone, Saunders added.
The Federal Communications Commission voted Thursday to expand the STIR/SHAKEN robocall regime to include providers that receive and deliver phone traffic. Previously, the rules only applied to voice service providers that originate and terminate calls.
“This was a gap in our rules, a way to let junk calls sneak into our networks and reach unassuming consumers,” FCC Chairwoman Jessica Rosenworcel said in a statement. “No more. Today we close this loophole and require intermediate providers… to use STIR/SHAKEN. We also insist that they, along with all other providers, register in our Robocall Mitigation Database.”
Downstream carriers will be prohibited from accepting calls from intermediate providers not listed in the database, Rosenworcel added.
“In my almost 38 years of practice, I have never seen the FCC actually produce more rules and regulations around a single issue in a shorter time as they have with robocalling,” said Glenn Richards, partner at Pillsbury Winthrop Shaw Pittman LLP, at the Broadband Breakfast event.
Panelists disagree about efficacy of STIR/SHAKEN
Despite the FCC’s efforts, some of the initiatives intended to combat robocalling have resulted in more harm than good, claimed Jonathan Marashlian, managing partner at The CommLaw Group.
“STIR/SHAKEN is not the answer,” Marashlian said. “Maybe it was a very small incremental step in a positive direction, but there are so many holes in the framework from just a sheer technological standpoint.”
Vonage Founder Jeff Pulver agreed that STIR/SHAKEN has proven ineffective. “We’re living in an era where we should be able to communicate more, not less,” he said. “Yet the shenanigans that have been going on have actually dramatically reduced call completion rates.”
But other panelists were more optimistic. Richards argued that it was too early to deem STIR/SHAKEN a failure, noting that some problems — such as traffic originating from overseas call centers — are not entirely within the FCC’s control.
“STIR/SHAKEN is by no means a failure — it is an essential element of the full response needed… but it is only one,” Saunders said. “If you have a panoply of problems and you close the door against one of them and leave the other door open, you haven’t solved the problem because all the bad players will simply come in through the other door.”
The fact that VoIP providers are allowed to rent phone numbers to telemarketers and scammers “completely undermines the whole purpose of STIR/SHAKEN,” Saunders added.
Which party is responsible for blocking robocall traffic?
In determining responsibility for bad traffic, Saunders drew an analogy to a grocery story that repeatedly sold spoiled milk from a variety of different brands. “The authorities would go down and say, ‘Grocery store, if you can’t stop selling bad milk because you can’t control your suppliers, we’re going to shut you down,’” she said. “In the end, it’s the terminating providers’ job, we think, to police the providers from whom they accept calls.”
Richards took a different approach. “I think the obligation really belongs to the originating service provider to taste the milk before they send the call,” he said. “There’s probably a relatively small number of originating service providers that are responsible for a large number of the illegal fraudulent traffic that is getting into the United States… and frankly, I think it’s important that those parties probably are the ones that are subject to enforcement.”
While Saunders agreed that the originating providers would ideally be held liable, she noted that “this problem has been going on for years and we’ve not been able to catch them.” Holding the terminating partners accountable, she said, would provide a more effective and pragmatic solution.
Pulver proposed a system where the caller party would pay and the destination party would set the price for call completion. In addition, he said, consumers should be empowered with tools such as “personal communication firewalls” that would allow individuals to block all unrecognized traffic.
Richards also promoted consumer choice, but noted that “not all consumers have that same technical capability — and particularly older consumers, who are the targets of a lot of these nefarious practices — so having the carriers intervene make some sense.”
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Wednesday, March 22, 2023, 12 Noon ET – Robocalls, STIR/SHAKEN and the Future of Voice Telephony
The Federal Communications Commission calls the fight against illegal robocall traffic its “top consumer protection priority.” The agency’s March 16 meeting heard discussion of several proposed rules to strengthen STIR/SHAKEN, from requiring intermediate providers to authenticate certain calls to adopting more robust enforcement tools. Required by the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act of 2019, has the FCC succeeded in making the STIR/SHAKEN framework work? Or is voice telephony still at the mercy of robocallers?
- Margot Saunders, Senior Attorney, National Consumer Law Center
- Jeff Pulver, Founder, Vonage
- Glenn Richards, Partner, Pillsbury Winthrop Shaw Pittman LLP
- Jonathan Marashlian, Managing Partner, The CommLaw Group
- Drew Clark (moderator), Editor and Publisher, Broadband Breakfast
- Legislating to Stop the Onslaught of Annoying Robocalls, Margot Saunders, April 30, 2019
- Illegal Robocalls: Calling All to Stop the Scourge, Margot Saunders, April 11, 2019
- FCC Expands Robocall Regime to Intermediaries, Establishes Robotext Protections, Broadband Breakfast, March 16, 2023
- VON Evolution Conference Will Address Intersection of Telecom, AI, 5G and Blockchain, Broadband Breakfast, March 21, 2023
- U.S. Robocall Mitigation Ecosystem Demands All Telecommunications Companies Pay Attention as New Threats Emerge and Compliance Balloons Well Beyond Mere FCC Compliance, The CommLaw Group
- CommLaw Group Robocall Mitigation Response Team
- Introduction to CommLaw Commpliance Group
Margot Saunders is currently a senior staff attorney with the National Consumer Law Center (NCLC) after serving as managing attorney of NCLC’s Washington, D.C. office from 1991 to 2005. Margot has testified before Congress more than two dozen times regarding a wide range of consumer law issues, including predatory mortgage lending, high cost small loans, payments law, electronic commerce, protecting benefits in bank accounts, privacy issues, and robocalls. She was the lead advocate on the passage of the Home Ownership and Equity Protection Act, the development of the Treasury Rule protecting exempt benefits, and many other initiatives.
Jeff Pulver is a tech industry icon, a pioneer in the field of Voice over Internet Protocol (VoIP), and a leading advocate for internet freedom. In the late 1990s, Pulver saw the potential for VoIP to revolutionize the way we communicate and founded the company Vonage, one of the first VoIP service providers. As VoIP began to gain traction, Pulver faced resistance from traditional telephone companies and regulators. In 2003, he took on the establishment and petitioned the Federal Communications Commission (FCC). In 2004 the FCC issued the “Pulver Order” which ensured that VoIP services would not be subject to traditional telephone regulation. This decision paved the way for the widespread adoption of VoIP and transformed the way we communicate.
Glenn Richards is Pillsbury’s Communications Practice Group Leader. Based in Washington, DC, he is a recognized authority on IP communications regulations and telecommunications policies and issues. Glenn represents VoIP and cloud communications service providers; satellite, wireless, long-distance and competitive local exchange carriers; broadcasters; equipment manufacturers; trade associations and others in transactional matters and before the FCC and state public utilities commissions. A partner in the firm’s Global Sourcing practice, Glenn also negotiates global telecommunications service contracts for large corporations.
Jonathan Marashlian is experienced in nearly all aspects of federal and state communications law and regulation. He has represented clients of all shapes and sizes and from all corners of the Communications/VoIP, Broadband, IoT and Information Technology industries for over 25 years. As Managing Partner of The CommLaw Group, Mr. Marashlian is responsible for coordinating and managing attorneys and professional staff and guiding the firm’s clients through the maze of federal, state and international regulatory, communications tax, and other compliance requirements.
Drew Clark (moderator) is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.
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FCC Expands Robocall Regime to Intermediaries, Establishes Robotext Protections
FCC approved first rules on robotexts, more on robocalls, and opened comments on dead zone satellite coverage and prison call rates.
WASHINGTON, March 16, 2023 – The Federal Communications Commission voted in its meeting Thursday to require providers that receive and deliver phone traffic to implement call authentication standards mandated under its STIR/SHAKEN robocall regime and to implement basic protections from problematic robotexts.
Under the previous rules, only voice service providers that originate and terminate calls were required to implement analytical tools that are intended to ensure, among other things, that the phone numbers appearing on caller I.D. are actually from the holder of the number to stop scam calls. But the STIR/SHAKEN robocall regime, which the commission began to enforce in June 2021, did not extend to the middlemen, or intermediary, providers.
That changed Thursday when the commission voted unanimously to broaden the regime to first intermediaries. The commission said that there are still some initiating call providers who are not capable of using the STIR/SHAKEN framework and still others who deliberately fail to authenticate the calls, hence why authentication should be implemented along the call traffic route, the commission said.
“By requiring the next provider in the call path to authenticate those calls, the FCC closes a gap in the caller ID authentication regime and facilitates government and industry efforts to identify and block illegal robocalls,” the commission said in a news release.
As such, intermediary service providers that fail to comply with the new rules will now also be subject to removal from the Robocall Mitigation Database, which would mean other providers would not be able to receive their call traffic.
The FCC noted that the new rules, which require the intermediaries to comply with by December 31, would “maximize” the number of authenticated calls.
In addition, the new FCC rules require all voice service providers to take “reasonable steps” to mitigate illegal robocall traffic and submit to the commission a certification and mitigation plan that would also include details about the provider’s role in the call chain, STIR/SHAKEN implementation obligations, and any law enforcement, regulatory or investigation into such illegal calls.
The commission has taken aggressive action in recent months against providers who have allegedly been non-complaint with the regime, including proposing record fines and forcing other providers to halt driving to and receiving traffic from offenders.
The rules impose fines on a per call basis and establish enforcement consequences for repeat offenders.
Illegal robocalls are number one complaint the FCC hears about from consumers, according to the commission.
FCC adopts first rules on robotexts and asks about further regulatory measures
The commission also unanimously adopted rules against scam text messages sent to consumers and is asking the public about further regulator actions it should take to protect against the texts.
The order adopted Thursday would require mobile service providers to block text messages that are “highly likely to be illegal,” including from phone numbers that are “invalid, unallocated, or unused.” The rules will also apply to numbers whom the subscriber said it never used to send text messages and to those of government agencies that identify the numbers as not being used for texting. It also requires the providers establish a point of contact for text senders, which senders “can use to inquire about blocked texts.”
The commission is also seeking comment on a proposal to clarify that Do-Not-Call Registry protections, which blocks marketing messages to the registered numbers in the database, apply to text messages. The commission said this would close the “lead generator loophole,” in which companies can use a texted point of consent to “deliver robocalls and text messages from multiple – perhaps thousands – of marketers on subjects that may not be what the consumer had in mind.”
Comments are due 30 days after the proposal’s publication in the federal register.
Text message scams have increased 500 percent in recent years, according to the commission, with complaints rising from roughly 3,300 to 18,900 per year from 2015 to 2022. The commission noted that unlike robocalls, text messages are “hard to ignore or hang-up on and are nearly always read by the recipient.” They can also include links that leads to websites that can install malicious software on the consumer’s phone, the agency said.
Agency chairwoman Jessica Rosenworcel proposed the rules last month.
“Robocalls and robotexts are a huge annoyance for everyone,” said a statement from Nick Garcia, policy counsel to advocacy group Public Knowledge. “We’re frequently bombarded with illegal scams and shady spammers – and many consumers don’t know how to protect themselves or where to turn for help. It’s clear that we need strong rules to cut down on this growing problem.
“The FCC has made great strides in combating robocalls, and it is encouraging to see that work continue while the FCC now takes steps to ensure consumers are protected from illegal and unwanted text messages,” Garcia added. “Today’s rules are a win for consumers, providing a common-sense baseline of protection from the kinds of illegal robotexts that are most obvious to identify—those that spoof invalid, unallocated, unused, or inbound-only numbers.”
Satellite to ground mobile coverage and prison call rates proposals
The commission also unanimously voted in favor of initiating a proceeding on a proposal from the chairwoman last month to allow for satellite broadband providers to get authorization to use the flexible spectrum already licensed to agreeing ground-based mobile wireless providers to fill in dead zones not covered by the latter.
The supplemental coverage proposal, part of the commission’s “single network future” vision, is for non-geostationary orbit satellite operators, such as low-earth orbit satellite providers like SpaceX’s Starlink, focused on portions spectrum in the 600 MHz, 700 MHz, 800 MHz Cellular Radiotelephone Service, and the Wireless Communications Service (2305 to 2360 MHz) bands.
“Connecting consumers to essential wireless services where no terrestrial mobile service is available can be life-saving in remote locations and can open up innovative opportunities for consumers and businesses,” the FCC said.
The commission is also asking how this framework could support access to emergency services like 9-1-1 and wireless emergency alerts.
There have been a number of partnerships between satellite broadband providers and mobile wireless providers for this purpose. In August, SpaceX announced its Starlink satellites will be able to connect T-Mobile’s customers in rural areas to fill gaps in the ground network by having the space company use a portion of T-Mobile’s Personal Communications Services spectrum. The service is anticipated for later this year.
The commission also unanimously voted to initiate a proceeding into implementing a new law requiring the agency to look into the prices charged to incarcerated people to call loved ones.
Passed late last year and enacted in January, the Martha Wright-Reed Just and Reasonable Communications Act requires the FCC to review those rates by expanding its authority over those communications services. Previously, the commission only had authority between states and foreign locations; now, it’s being handed authority to tackle rates and charges for voice and video calls within states. The law requires the regulator to adopt “just and reasonable rates” no earlier than 18 months and no later than 24 months since enactment.
As such, the commission is asking commenters about the expansion of the regulator’s authority to deal with interstate calls, what “just and reasonable” means in the context of the law, how to approach setting rates, and the commission’s ability to ensure communication service for people with disabilities.
The FCC cited studies that it said show incarcerated people “who have regular contact with family members are more likely to succeed after release and have lower recidivism rates.”
Public Knowledge, in a separate statement, also applauded the proposed rulemaking to address “unconscionable phone rates” that “impose undue hardship on families.”
Comments on both matters are due 30 days after their publication in the federal register.
Legal Experts Expect Data Security Litigation to Face Challenges of Standing
Current precedent is unclear in data security litigation, say experts.
WASHINGTON, February 9, 2023 – Data security litigation, such as in robocall cases, is facing an increasingly steep burden to establish standing, the capacity to bring a lawsuit to court, said a panel of law experts on Wednesday.
Article III, which grants power to the judiciary branch, states that federal courts can only hear “cases or controversies,” which requires the plaintiff to have a legal right to sue. Standing requires that the plaintiff have a “concrete and particularized” injury.
For those lawsuits that represent the interests of a large number of people, standing becomes more complicated and data security is right at the forefront, said Aaron Weiss of Carlton Fields law firm at the Federal Communications Bar Association event.
Recent court decisions have relied heavily on an appeal to historical antecedent, said Heather Elliott, professor at the University of Alabama School of Law.
A 2016 Supreme Court decision – in which the plaintiff, Thomas Robins, accused “people search engine,” Spokeo, of sharing incorrect information about him – overruled the Ninth Circuit decision on the basis that the plaintiff could not prove that the injury was concrete.
Telephone Consumer Protection Act
The Federal Communications Commission has regulatory authority under the Telephone Consumer Protection Act to prohibit using automatic telephone dialing systems to call residential or cellular telephone lines without consent.
In 2018, John Salcedo brought a class action lawsuit against Alex Hanna, alleging that Hanna had violated TCPA by sending an unconsented automized text. The Eleventh Circuit determined that there was no concrete injury. Its verdict stated that “on text messaging generally… the judgement of Congress is ambivalent at best.”
On a similar case in 2021, however, the Fifth Circuit held that a single text message was the invasion of privacy that Congress intended to ban under the TCPA and delegated authority to the FCC to implement the law.
To further complicate the matter, state courts are under different jurisdiction and may rule separately from its circuit, said Weiss.
“It is very clear that the lower courts are super confused,” added Elliott.
The FCC is currently taking steps to combat telephone scammers. It ruled in November that straight-to-voicemail robocalls are calls under the TCPA and will be subject to the law’s consumer protections. According to the TCPA, read the commission’s ruling, the recipient of an automatic dialing system, artificial voice, or prerecorded message must provide affirmative consent prior to receiving it.
Major questions doctrine
The FCC, however, is itself facing uncertain regulatory authority. In June, the Supreme Court held that in “extraordinary cases” a federal agency, such as the FCC, must point to “clear congressional authorization” for the authority it claims.
Under the major questions doctrine, the Supreme Court can reject federal agency claims of regulatory authority when the issue is of “vast economic and political significance” and when Congress has not clearly endowed the agency with authority over the issue.
Representative Cathy McMorris Rodgers, R-Wash., is concerned with the legislative power that federal agencies have. “Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” she wrote in a letter to FCC Chairwoman Jessica Rosenworcel in October.
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