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TCPA Regulatory Update: Anti-Spoofing Vote, SHAKEN/STIR Robocall Summit, Letters on Robocall Blocking Progress, and the Established Business Relationship Exception

Robocall Solutions Remain Atop Commission Agenda with Anti-Spoofing R&O to be Voted on in August

As we reported in the June TCPA Digest, the Commission adopted the Default Call Blocking Declaratory Ruling and Third Further Notice of Proposed Rulemaking at its June Open Commission Meeting. Comments on the Third Further Notice are due July 24, and reply comments are due August 23. One Petition for Clarification or Reconsideration of the Declaratory Ruling has already been filed. The Alarm Industry Communications Committee (“AICC”) asks the FCC to clarify that (1) direct customer notification of call-blocking programs is necessary; (2) that alarm company notifications are the type of emergency communication the Commission cautions voice service providers must safeguard; and (3) that voice service providers must implement any call blocking program in a non-discriminatory fashion. The FCC has not yet released a Public Notice seeking comment on this petition.

At its upcoming August 1 meeting, the FCC will vote on a Second Report and Order (“Second R&O”) banning the malicious caller ID spoofing of text messages and international calls. The vote follows the rulemaking the FCC launched this February to curb spoofed robocalls, implementing part of the RAY BAUM’s Act. That Notice of Proposed Rulemaking (“NPRM”) was covered in our February TCPA Digest, and the draft Second R&O largely tracks the Commission’s February proposal, as well as the wording of the RAY BAUM’s Act.

Specifically, the Second R&O would extend the Commission’s Truth in Caller ID rules to encompass malicious spoofing activities originating outside the U.S. that are directed at consumers within the U.S. It would also expand the scope of communications covered by the Truth in Caller ID rules beyond telecommunications services and interconnected voice over Internet Protocol (“VoIP”) services to include text messaging and alternative voice services, such as one-way VoIP services. One change from the February NPRM is the addition of Common Short Codes to the definition of a “text message”. The addition would expand the scope of text messages covered by the Truth in Caller ID rules.

FCC Hosts SHAKEN/STIR Robocall Summit

On July 11, FCC Chairman Pai convened a summit focused on the industry’s implementation of the SHAKEN/STIR framework to combat illegal robocalls and caller ID spoofing, with the goal of rebuilding trust in the phone network. The summit showcased the progress that major voice service providers have made toward reaching that goal and provided an opportunity to identify challenges to implementation and how best to overcome them. The agenda and video of the speakers is available here.

Chairman Pai presented remarks at the summit and it concluded with a fireside chat with the chiefs of the Enforcement, Wireline Competition, and Consumer and Governmental Affairs bureaus. The three panels focused on progress made by industry to deploy SHAKEN/STIR, how the technology can improve the consumer experience, and the problems and challenges faced by smaller voice service providers. Industry representatives, trade associations, consumer groups, and Commission staff all participated in the summit.

Chairman Pai said he was encouraged by what he heard at the summit and urged larger providers to work with smaller providers to ensure all carriers can offer SHAKEN/STIR authentication on a timely basis. He said he is optimistic that providers will meet the Commission’s end-of-2019 deadline, but said the FCC is prepared to “go to rules” in early 2020 if major voice providers fail to timely deploy.

Speakers discussed the challenge that bad actors posed, and agreed that SHAKEN/STIR will not protect consumers from every potential scam. For example, the protocol cannot protect consumers against a call from a charity collecting donations by credit card, if the charity turns out to be fake and steals the consumer’s credit card information, one speaker explained.

Rural carriers discussed challenges with cost-recovery due to their small subscriber bases, and additional problems faced by providers that rely on Time-Division Multiplexing technology. Smaller providers said they are waiting for finalized rules and clarity before they can roll out a solution, because they have few staff and a limited budget to dedicate to SHAKEN/STIR implementation.

Starks Disappointed by Some Carrier Responses to his Request for Letters on Robocall Blocking Progress

Fourteen major voice service providers submitted letters in response to Commissioner Geoffrey Starks’ June 10 letter seeking details about their plans to offer default call blocking services to consumers for free (discussed in last month’s TCPA Digest). The letters were due on July 10. Despite timely receiving all 14 responses, Commissioner Starks’ statement expressed disappointment at the state of progress, calling carriers’ plans for these services “far from clear.” He said that, “[d]espite historically clamoring for new tools, it does not appear that all providers have acted with haste to deploy opt-out robocall blocking services.” Commissioner Starks added that the FCC will commence a rulemaking if it finds that carriers are not meeting the Commission’s expectations, and he expects to hear updates on progress from carriers.

FCC Seeks Comments on Request for Clarification Regarding the Established Business Relationship Exception to the TCPA

On June 24, the FCC’s Consumer and Governmental Affairs Bureau released a Public Notice seeking comment on the Request for Clarification filed by Patrick Maupin. Mr. Maupin asked the FCC to clarify the scope of the exception provided by the Established Business Relationship rule, 47 CFR § 64.1200(f)(5). Specifically, Mr. Maupin requested that the Commission clarify that “the purchase of an automobile at retail from a car dealer does not automatically create an [established business relationship] between the automobile purchaser and the third-party provider of a radio subscription service,” which would permit the radio subscription service provider to call the purchaser even if that purchaser is registered on the National Do-Not-Call Registry.

The request is in response to Mr. Maupin’s purchase of a new car earlier this year, after which he received two unsolicited calls from Sirius XM, despite having his number listed on the Do-Not-Call Registry. Sirius XM recently settled a similar class action suit in Buchanan v. Sirius XM for $25 million.

Comments on the Request for Clarification are due July 29, and Reply Comments are due August 13.



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Monthly TCPA Digest – July 2019

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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.