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

Panelist resources

• 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

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See a complete list of upcoming and past Broadband Breakfast Live Online events.

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.

WASHINGTON, March 9, 2023 – After a panel of experts recommended Thursday that Congress focus on passing federal privacy legislation, another group of experts wrangled with whether it is feasible for there to be a coexistence of federal and state privacy laws.

A number of states have already passed or are in the midst of passing their own privacy laws, with versions in California, Colorado, Connecticut, Utah, and Virginia having already come into – or are coming into effect – this year. Simultaneously, Congress is seized with pushing forth one blanket law for the entire country, with commitments from members of an innovation subcommittee to resurrect such a law. All laws address the collection, use, storage and sharing of data.

Photo of “Regulating Data Privacy” panelists Shane Tews, India McKinney, Alan Butler, Carl Szabo, Sara Collins and John Verdi (moderator) by Drew Clark

The last federal privacy proposal, called the American Data Privacy and Protection Act, did not pass both chambers before legislative turnover. One sticking point for lawmakers on that law was the possibility of pre-empting state laws, including California’s, whose members were vocal about their opposition on that front. Rep. Anna Eshoo, D-Calif., proposed her own amendment that would make the federal law a baseline and states could add provisions on top.

On Thursday at the Big Tech & Speech Summit, panelists grappled with the implications of that. On one side was the Electronic Frontier Foundation, represented by director of federal affairs India McKinney, who argued for more state consumer protection laws. McKinney suggested that a layering of privacy laws would actually increase consumer protections. The EFF has argued for a floor, not a ceiling, for any version of a federal privacy law.

The organizations has argued that some provisions in the aforementioned state laws are stronger than the ADPPA. Part of the argument is that states are knowledgeable of their own problems and should be able to fix them themselves.

Differing perspectives from ‘pro-privacy’ panelists

On the other side were Carl Szabo, vice president and general counsel for free speech and enterprise trade association NetChoice, and Shane Tews, nonresident senior fellow at the think tank American Enterprise Institute. Szabo pressed for a federal privacy law with pre-emption because of what he argued was a problematic patchwork of various laws that create regulatory and financial burdens on businesses.

Szabo piggybacked off a point made by Cathy Gellis, a lawyer and moderator for another panel, who argued that having different state laws would put her clients in a difficult spot because she wouldn’t be able to advise them in different jurisdictions in which she isn’t licensed to practice. In other words, the client would have to see more lawyers to ensure compliance.

Dane Snowden, senior advisor at telecom-focused law firm Wilkinson Barker Knauer, argued in an earlier panel that it is unfeasible for a product traveling through multiple jurisdictions to have to comply with various different privacy laws.

Szabo said having lots of privacy laws in the country is good for lining the pockets of lawyers, but bad for businesses.

Tews, who also argued for a federal privacy law, touched on the issue from a consumer perspective.

“Consistency, I think, is one thing that’s very important,” Tews said. “From a consumer’s perspective…it is that the information is consistent…we need to have a consistent national perspective on this.”

Tews also touched on this being an international trade issue.

Years ago, for example, the European Union made a fuss about its trading partners not having sufficient data privacy protections for its citizens. Its data protection law, the General Data Protection Regulation, was leveraged as a trade issue to ensure its citizens had data privacy protections for goods and services transacting across borders.

“We need to think about where this information is flowing and where this is actually ending at the end of the day,” Tews said.

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