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Public Knowledge Urges VoIP to Be Regulated Under Title II to Stop Robocalls

Title II would require VoIP services to be subject to stronger regulations already in place for telecommunication providers.



Photo of Harold Feld, Senior Vice President of Public Knowledge

WASHINGTON, August 18, 2022 – Public Knowledge is asking the Federal Communications Commission to classify facilities-based voice over Internet protocol services under Title II of the 1934 Communications Act, which it said would help the commission tackle robocalls.

The non-profit public interest group last week amended a March petition to the agency narrowing the field of VoIP providers to be captured under its proposal to facilities-based interconnected VoIP services, which require a broadband connection for real-time voice communications on the public telephone network. That’s instead of a broader field including non-interconnected services, which allow voice communications through a device not connected to the phone network, like gaming consoles.

Title II specifies authority given to the FCC to regulate “common carriers” – utilities such as landline phones, telecommunication services, and electricity. Currently, VoIP services are not included in any specific classification. Instead, the FCC relies on rules based on its ancillary authority given under Title I of the Communications Act, which provides less regulatory authority to the commission.

If classified under Title II, VoIP providers would be beholden to service quality regulations, such as the prevention of ever-increasing robocalls, and to regulations ensuring affordable access to infrastructure for competitive carriers, Public Knowledge said in its petition.

The organization also said that new categorization would prevent a “crisis of legal authority” for the FCC, which already makes VoIP services subject to certain Title II regulations, such as contributions to the basic telecommunications program, the Universal Service Fund. Currently, Public Knowledge argues, regulations governing VoIP services are a collection of ad hoc rulings based on ancillary authority.

Lack of classification ‘threatens’ FCC ability to fulfill legislative mandate

Congress “deliberately used expansive terms” when defining telecommunications in the Telecommunications Act of 1996, which gave the FCC authority to regulate sectors within the communications industry, said the March petition. “At a minimum, Congress intended the FCC to regulate any service that behaves like a traditional telephone service – regardless of the underlying technology – as a telecommunications service,” read the petition.

Yet despite a lack of meaningful difference between VoIP and traditional telephone services, the FCC continues to treat VoIP services differently, said the petition. This “failure” of the FCC to classify VoIP under Title II allegedly frustrates the commission’s ability to effectively address robocalls and makes uncertain whether the commission preempted its authority to regulate VoIP services.

“The FCC’s failure to classify facilities-based interconnected VoIP threatens the ability of the FCC to fulfill the most basic responsibilities entrusted to it by Congress,” stated the petition.

The burden of Title II

In a blog post on the matter, communications law firm CommLaw group argued that Title II VoIP providers would likely be required to obtain FCC approval prior to transfers of assets and mergers and acquisitions, which it said would slow transaction speed considerably. Furthermore, it could open the door to “increased state regulatory oversight, requirements, and burdens,” it added.

Earlier this month, Democratic Senators introduced a bill that would give the FCC regulatory authority over broadband by classifying those services as Title II. It would allow the commission greater regulatory authority to make internet service providers respect principles of net neutrality, which prohibit providers from throttling traffic on their networks, participating in paid prioritization, or blocking of any lawful content. The bill, however, has been met with opposition.

Reporter Teralyn Whipple studied business at Brigham Young University. She has a love for the people in the Washington area, and hopes to share her love for people through her writing.


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.



Screenshot of FCC

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.

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Legal Experts Expect Data Security Litigation to Face Challenges of Standing

Current precedent is unclear in data security litigation, say experts.



Photo of Heather Elliott, professor at the University of Alabama School of Law

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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FCC Proposes ‘Record-Breaking’ Fine on Robocall Scammer

The FCC alleges that the Cox/Jones Enterprise conduct violated the Telephone Consumer Protection Act.



Screenshot of FCC Chairwoman Jessica Rosenworcel

WASHINGTON, December 21, 2022 – The Federal Communications Commission on Wednesday proposed a near $300 million fine on an apparently fraudulent robocall and spoofing operation, the largest fine of its type to date, according to the agency.

Claiming to have information about recipients’ auto warranties, the so-called “Cox/Jones Enterprise” placed more than five billion scam robocalls in early 2021, the FCC alleges. The agency says these calls were made to more than a half a million phones and used over a million unique caller ID numbers. The operation made these calls from various American and foreign entities, including entities located in Panama and Hungary, the commission says.

The FCC alleges that the Cox/Jones Enterprise conduct violated the Telephone Consumer Protection Act’s provisions that robocallers must obtain express consent from the recipient before calling a mobile phone and that they must identify themselves at the beginning of the call. The enterprise is also illegally used phony caller IDs to appear near to call recipients, the agency says.

The fine was unanimously proposed at the commission’s December open meeting, at which Chairwoman Jessica Rosenworcel committed to continued action against phone scammers.

“Earlier this month, we ordered phone companies to block the company responsible for up to 40 percent of scam calls involving student loans. Plus, we now have agreements with 43 State Attorney Generals (sic), the District of Columbia, and Guam to go after illegal robocalls – just like we did here with the Ohio Attorney General,” Rosenworcel said in a prepared statement. “So our message is clear to those who would follow in the footsteps of the auto warranty scammers – we are watching, we are working with our state counterparts, and we will find you, block you, and hold you accountable.”

On Tuesday, the FCC announced a new online portal for entities to report robocall and spoofing violations. The agency in November took action to crack down on straight-to-voicemail robocalls and in October launched an inquiry into combatting calls on non-internet-protocol networks.

The FCC moves to streamline space authorizations

At Wednesday’s meeting, the FCC unanimously approved a notice of proposed rulemaking that would expedite satellite and earth station applications, following Rosenworcel’s November announcement of a new space bureau. Commissioners touted the American space industry’s accelerating rate of satellite deployments and called for updated regulation to facilitate the sector’s further growth.

In their comments, Rosenworcel and Commissioner Brendan Carr praised the Satellite and Telecommunications Streamlining Act, a recently introduced bipartisan bill from Reps. Frank Pallone, Jr., D-N.J., and Ranking Member Cathy McMorris Rodgers, R-Wash., that would facilitate satellite permitting. Commissioner Nathan Simington endorsed the bill earlier this month.

The FCC sought comment on measures to combat digital discrimination, including via proposals to define the term, update the agency’s consumer complaint mechanism, and provide “model policies” and “best practices” to states and localities. The agency also proposed rules to improve emergency responses by requiring wireless and some text providers to facilitate location-based routing on their internet protocol-based networks. Lastly, the FCC proposed a new compensation structure for certain providers to improve captioned phone calls for the deaf and hard of hearing.

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