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TCPA Regulatory Update: Commission Releases and Actions

FCC Adopts Proposed Rules on Reassigned Numbers Database

On March 22, 2018, the Federal Communications Commission (FCC) adopted a Second Further Notice of Proposed Rulemaking (FNPRM) proposing the creation of a reassigned numbers database. Under the proposed rules, the FCC will ensure that a database is available to provide callers with the timely and comprehensive information they need to avoid calling reassigned numbers. The FNPRM also seeks comment on the kind of information that callers need from such a database, the best way for service providers to report this information, and whether the FCC should adopt a safe harbor from TCPA liability for callers who check the database.

The adopted FNPRM was changed from the draft version Chairman Ajit Pai circulated to include wording that addressed the long-awaited U.S. Court of Appeals TCPA ruling in ACA International v. FCC, issued just days prior to the vote. In particular, the FNPRM contains a paragraph seeking comment on the impact of the decision and how possible FCC action in response to that decision could affect the costs and benefits of the database options discussed in the FNPRM. Because of the Court’s decision to set aside the one-call safe harbor as arbitrary and capricious, coupled with the FCC’s increasing focus on cost-benefit analysis, the FCC may now be more likely to adopt a voluntary, rather than mandatory, approach to the reassigned number database.

Despite voting in favor of the proposal, Commissioner Michael O’Rielly said that the database proposal needed to be reassessed in light of the ruling and that more data is needed. In his written statement, he said the FCC should remain focused on “bad actors,” and said ideas “designed to help legitimate businesses operate within the confines of the largely defunct [2015 TCPA Omnibus] Order need to be reexamined closely and methodically.” Taking the opposition position, Commissioner Jessica Rosenworcel called the database “an effort to provide a legal green light for robocallers,” adding that “as long as they consult this list before dialing, they will be free from liability under the [TCPA]. So this protects robocallers.” Commissioner Rosenworcel lamented that it has been six months since the FCC initiated its last robocalling enforcement action; she called on the FCC to move forward with call authentication efforts, including the SHAKEN-STIR framework, which stands for Signature-based Handling of Asserted Information Using to-KENs (Shaken) and Secure Telephone Identity Revisited (Stir), that is already being implemented in Canada.

FCC and FTC Hold Joint Policy Forum on Robocalls

The day following the Commission vote, the FCC and the Federal Trade Commission (FTC) co-hosted a Joint Policy Forum on combating illegal robocalls, which highlighted recent policy changes, developments, and enforcement actions, as well as technical solutions and tools aimed at fighting the scourge of illegal robocalls. Speakers included the recently installed FCC Chief of Consumer and Governmental Affairs Patrick Webre, FCC Chairman Pai, and FTC Acting Chairman Maureen Ohlhausen, in addition to speakers from divisions and bureaus leading these efforts at the FCC and FTC, and the technology, consumer advocacy, and regulatory communities.

April has been a quiet month thus far on the TCPA front, and no TCPA-related items are scheduled for consideration during the Commission’s April Open Meeting.

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Authors

Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

Elana R. Safner

Associate

Elana R. Safner is an attorney who advises Mintz clients on public policy, regulatory issues, and disputes affecting the communications sector. Elana also handles privacy and cybersecurity matters. She has CIPP certification from the International Association of Privacy Professionals.