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FCC’s Proposed Rules on Robotexts Will Limit Wireless Providers’ Effectiveness: Industry

The ruling would prevent providers from accessing emergency and government services, they say.

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Photo of Gregory Romano of AT&T

WASHINGTON, August 18, 2023 – Commenters argue that proposed Federal Communications Commission rules that seek to provide voice consumers more control over robocalls and robotexts would have harmful consequences by limiting their ability to communicate with service providers. 

The FCC released a notice of proposed rulemaking in June that would strengthen the consumers’ ability to revoke consent to receive robocalls and robotexts. It would ensure consumers can easily revoke consent to receive robocalls, require that callers honor do-not –call requests within 24 hours and allow wireless consumers the option to stop robocalls and robotexts from their own wireless provider.  

ACA International, a trade group for the debt collection industry, in conjunction with the Credit Union National Association recommended that the FCC codify reasonable limits on the methods of revocation of consent for robocalls and texts.  

The law, as currently written, would “ensure that revocation of consent does not require the use of specific words or burdensome methods” and codify a 2015 ruling that consumers who have provided consent may revoke it through any reasonable means. ACA International and CUNA asked the FCC to acknowledge the realities of revocation processes. 

“Automated processes cannot be programmed to recognize a virtually infinite combination of words and phrases that could reasonably be interpreted as a clear expression of consumers desire to stop further communications,” it said. The FCC should specify “reasonable means that callers can prescribe, such as a limited set of keyworks that are common synonyms of STOP, which is the universally recognized method to prevent further text messages.” 

Cable industry wants guidance on ‘reasonable methods’

Steven Morris, vice president at NCTA, the Internet and Television Association, added his support that the FCC should provide additional guidance on what it defines as “reasonable methods” of revoking consent and allow callers 72 hours to process opt-out requests. It also suggested that the FCC adopt its proposal to permit one-time texts seeking clarification on the scope of an opt-out request. 

“The FCC’s proposal that consumers be able to revoke consent using ‘any telephone number or email address at which the consumer can reasonably expect to reach the caller’ would also be incredibly complex and likely impossible to effectively administer,” NCTA said. 

Wireless trade association CTIA’s manager of regulatory Affairs Courtney Tolerico said in comments that the proposal severely limits providers ability to send important, service-related communications to subscribers and incentives providers to apply opt-outs unnecessarily broadly, further limiting these beneficial communications and “downgrading the wireless customer experience.” 

It claimed that “even if the FCC had such authority, doing so in the absence of demonstrated consumer harm would be arbitrary and capricious,” saying that the agency does not have reason to enforce laws that would hamper wireless carrier’s ability to serve customers. 

Verizon’s general counsel, Christopher Oatway, expressed the same sentiment, claiming that the FCC “provides no basis to conclude that wireless carriers are abusing their subscribers with unwanted calls or texts.” 

The proposal would “undermine the unique relationship between providers and their customer for wireless service, which today is crucial to Americans’ ability both to conduct their everyday lives as well as to access emergency services and government benefits,” said Verizon. It referred to federal programs like lifeline and ACP that promote connectivity, claiming that its communications with its own customers educates on federal benefit programs. 

‘No incentive’ for abuse by wireless providers, says AT&T

Gregory Romano, vice president and deputy general counsel at AT&T added that “there is no incentive for wireless providers to abuse the current wireless carrier exception,” referring to wireless carriers’ ability to contact their own customers. “The marketplace for consumer wireless service is highly competitive. Wireless providers do not want to annoy their customers with too many messages, or the provider is at risk of losing the customer to a competitor, which is clearly not in the provider’s interest.” 

In June, commenters pushed back against FCC proposed rules that would require mobile wireless providers to ban marketers from contacting a consumer multiple times based on one consent, claiming it will harm legitimate communications. 

Proposed rules are in response to the rising number of telemarketing and robocalls, sated the notice of proposed rulemaking.  

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Teralyn Whipple, who joined Broadband Breakfast in 2022, studied marketing at Brigham Young University. She has reported extensively on broadband infrastructure, investments and deployment. She has also headed marketing campaigns for several small companies.

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FCC

FCC Proposed Rules Will Harm Legitimate Text Messages, Say Commenters

The rules would ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer.

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4 months ago

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June 6, 2023

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Photo from robotext lawsuit

WASHINGTON, June 6, 2023 – Commenters claim that the Federal Communications Commission’s proposed rules that would require mobile wireless providers to ban marketers from contacting a consumer multiple times based on one consent will harm legitimate communications. 

The new rules will set additional protections that would require the terminating provider to block texts after notification from the FCC that the text is illegal, to extend the National Do-Not-Call Registry’s protections to text messages, and to ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer based on one consent. Comments on the proposal were due in May and reply comments on June 6.

“Robocall campaigns often rely on flimsy claims of consent where a consumer interested in job listings, a potential reward, or a mortgage quote, unknowingly and unwillingly ‘consents’ to telemarketing calls from dozens – or hundreds or thousands – of unaffiliated entities about anything and everything,” read the comments from USTelecom trade association.  

Wireless trade association CTIA cited that Medicaid text messages that alert customers to critical health updates may be blocked by the ruling despite the FCC’s acknowledgement that these texts are critical. Many providers are unbending in enforcing robotext policies that mandate agencies must “satisfactorily demonstrate they receive prior express consent from enrollees to contact them.” 

CTIA’s comments claimed that the proposed rules would “do little to enhance existing industry efforts to reduce text spam or protect consumers.” 

Competitive networks trade association INCOMPAS claimed that the current framework is not well suited to allow the industry to universally resolve text messaging issues. “In the absence of standardized, competitively neutral rules, the current dynamics create perverse incentives that allow gamesmanship and arbitrage schemes as well as fraudulent behaviors to thrive.” 

USTelecom commended the FCC for taking these steps and suggested that it expressly ban the practice of obtaining single consumer consent as grounds for delivering calls to multiple receivers by issuing a decisive declaration rather than a rule change. Providing clear guidance will deprive aggressive telemarketers of the plausible deniability they rely on to put calls through, it said. 

The new language proposed in the notice is unnecessary and runs the risk of introducing new ambiguity by not eliminating perceived loopholes through a decisive declaration, read its comments. 

The Retail Industry Leaders Association claimed that the notice would “primarily and negatively impact those who send legitimate text message solicitations, not scam senders and bad actors.” The well-intentioned measures will sweep in legitimate text communications, it claimed, by reducing consumer control and making assumptions on their behalf. 

“Consumers use the DNC list to prevent unwanted telephone call solicitations. They do not expect that the DNC List will prevent normal and desired communications from legitimate businesses like RILA members,” it wrote.

In the event the FCC moves forward with the proposed rules, the RILA urged that the rules include “clear carve-outs or safe harbors” for legitimate solicitations. 

This comes as the FCC considers additional proposed rules that will strengthen consumer consent for robocalls and robotexts by allowing consumers to decide which robocalls and texts they wish to receive.

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FCC

Proposed Rules to Limit Unwanted Calls Will Not Protect Consumers, Says CTIA

The proposed rules will not protect consumers and will limit consumer’s ability to receive important messages from carriers.

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4 months ago

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June 5, 2023

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Image from DFT Communications

WASHINGTON, June 5, 2023 – Wireless trade association CTIA expressed concerns with provisions in the Federal Communications Commission’s Notice of Proposed Rulemaking released in May that would strengthen consumer consent for robocalls and robotexts by allowing consumers to decide which robocalls and texts they wish to receive.  

The draft proposals will not protect consumers and instead will “limit the ability of consumers to receive important, time-sensitive information about their wireless service,” said CTIA. These time-sensitive messages can include bill reminders, international roaming alerts, and fraud alerts, among others.  

The notice as currently written does not acknowledge any record support, policy reason or benefits that the proposed limitations to the current framework would deliver, read the report by CTIA. 

CTIA urged the FCC to add questions to the notice to clarify the unique relationship between wireless service providers and their consumers and the substantial consumer benefits that have resulted under the current framework. 

The action is a response to the rising number of telemarketing and robocalls, stated the Notice. “We believe the rules the commission adopts here strike an appropriate balance between maximizing consumer privacy protections and avoiding imposing undue burdens on telemarketers,” read the Notice. 

The Notice seeks to revise the current Telephone Consumer Protection Act rules and adopt new ones that would provide consumers with options for avoiding unwanted telephone solicitations. The ruling would include a national do-not-call registry for all telemarketing calls. 

 

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Robocall

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.

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6 months ago

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March 22, 2023

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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.”

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

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

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.

Graphic from Adobe Stock used with permission

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