Are you, or your customers, annoyed by receiving pre-recorded telemarketing calls at your office that appear to be from a business colleague or calls at your home that appear to be from a neighbor because they share the same area code and NXX (i.e. 202-567-xxxx)?  With the FCC receiving over 52,000 consumer complaints about caller ID spoofing in 2018 (only a fraction of its total robocall complaints received from consumers), the Commission is poised to expand its regulation of these deceptive calls in a new rulemaking implementing Section 503 of RAY BAUM'S Act.[1]  In response to recent legislation amending the Truth In Caller ID Act to expand its geographic and subject matter reach, the FCC proposes to amend its existing Truth in Caller ID rules to (1) cover calls to American consumers originating from outside the United States, and (2) cover all Caller ID spoofing using "alternative voice and text messaging services."  Up to now, the FCC's Caller ID rules have covered any "telecommunications service or IP-enabled voice service."  Now, the FCC proposes to expand the scope of covered communications under its Truth in Caller ID rules to make the prohibition on inaccurate caller identification information" applicable to "any voice service or text messaging service."[2]  The Commission believes that "explicitly identifying the services" covered by its rules better tracks the statute and will provide "more direct notice" to covered entities.[3]  Comments are due on April 3, 2019; reply comments are due May 3, 2019.
The Commission seeks comment on its proposed definitions of "text message," "text messaging service," and "voice service," and on its revised definitions of "caller identification information" and "caller identification service" to meet Congress' intent to "expand the scope of the prohibition on harmful caller ID spoofing."[4]

Text Message and Text Messaging Service

For example, the rulemaking proposes a definition of "text message" that tracks the statutory definition to include a "short message service (SMS) message and a multimedia message service (MMS) message" but excludes a real-time, two-way voice communication (which if transmitted by means of a 10 digit telephone number or N11 service code would be included in the definition of a "voice service") or video communication, or a message sent over an IP-enabled messaging service to another user of the same service - except for an SMS or MMS message.[5]  The Commission believes that this exclusion should encompass IP-enabled messaging services such as iMessage, Google Hangouts, WhatsApp and Skype. The FCC seeks comment on this proposal, and asks whether its proposed exclusion will permit adequate enforcement against misleading text messages or inadvertently "provide a safe harbor for bad actors to exploit?"[6]
The Commission asks if commenters agree with its belief that its classification of SMS and MMS wireless messaging services as "information services" rather than "telecommunications services" in its December 2018 Wireless Messaging Service Declaratory Ruling[7] does not impair or impede its proposed new Caller ID rules implementing Congress' amendment of Section 227(e).[8]

Voice Service

Section 227(e) as amended by Congress defines "voice service" as "any service that is interconnected with the public switched telephone network and that furnishes voice communications to an end user using resources form the North American Numbering Plan or any successor to the North American Number Plan..."[9] The definition also includes transmissions from a telephone facsimile machine, computer or other device to a telephone facsimile machine.  The FCC seeks comment on its proposal to adopt the identical definition of "voice service," under Section 227(e) as amended, for the purposes of its Truth in Caller ID rules. The FCC also proposes to interpret the term "voice service" "to include [rather than in the definition of "text message"] and be more expansive" than calls using a "telecommunications service" or "interconnected VoIP service" under its existing rules, and seeks comment on that proposal as well.[10]
The Commission also interprets Section 227(e) as amended, which removes reference to the definition of "interconnected VoIP service" from the definition of covered voice services, as meaning that Congress no longer intends to limit the scope of IP-enabled voice services to those meeting the definition of "interconnected VoIP service." The FCC seeks comment on this conclusion.[11]  Taken one step further, the Commission specifically asks if it should include interpret "interconnected" within the definition of "voice service" of amended section 227(e) to include any "one-way" VoIP service that connects with the PSTN, using telephone numbers to separately make outbound calls to, or to receive calls from, landline or mobile telephones.  Such services are NOT interconnected VoIP services within the FCC's definition, but the Commission asks whether the amended Truth in Caller ID rules should reach these one-way IP-based voice services.[12]  Should "interconnected" be interpreted to include both direct and indirect interconnection to the PSTN?  The Commission also asks: what voice communications susceptible to caller ID spoofing would not be captured by the definition of "voice services" if "interconnected" were interpreted to exclude voice services indirectly connected to the PSTN?
Conversely, the Commission, citing its 2011 Commission Report, is inclined not to include within "voice services" under amended section 227(e) real-time two-way voice communications between and among "closed user groups", which it considers do not give rise to the "same degree of caller ID spoofing", have no connection to the PSTN, and which it concludes Congress did not intend to reach.[13]  The Commission also asks if commenters agree with this view.

Congress Pushes for Enhanced Authentication Mandates and FCC Enforcement Authority to Combat Robocalls with The TRACED Act (S. 151)

Meanwhile, legislative efforts on Capitol Hill to combat "the scourge of robocalls" are gaining momentum.  Two bills in the House, the REAL PEACE or HANG-UP Act (H.R. 1421), and H.R. 1575, the Robocall Enforcement Enhancement Act of 2019 have been recently introduced. But perhaps the one with the most support is a Senate bill, The TRACED Act (S. 151), reintroduced in January by Senators Markey (D-Mass.) and Thune (R-S.D.).  This bill has gained bipartisan support in the U.S. Senate (including a March 8 letter from a bipartisan group of ten Senators), as well as broad support from all 50 state attorneys general, all commissioners of the FCC and FTC, and industry and consumer groups.  Among other mandates, the TRACED Act would:
  • Create a new forfeiture penalty available for FCC Enforcement actions for TCPA violations of up to $10,000 per call;
  • Extend the statute of limitations for the FCC to pursue intentional TCPA violations for robocalls from 1 to 3 years.
  • Mandate that the FCC "require a provider of voice service to implement the STIR/SHAKEN authentication framework in [I]nternet protocol networks of voice service providers." The FCC Chairman has recently issued at least two statements demanding that the "major" voice carriers implement the STIR/SHAKEN authentication framework in 2019, threatening regulatory intervention if the larger players do not comply.[14]  Up to now, implementation of STIR/SHAKEN has been undertaken voluntarily by the largest carriers, rather than by statute or a regulatory mandate.  Smaller carriers have so far been exempted from any expectation of implementing the call authentication framework due to the costs involved, and the first stage priority of getting the largest carriers to implement it successfully first. If this legislation passes, it will relieve the pressure on the Commission to take action to mandate a STIR/SHAKEN call authentication framework through a rulemaking.
  • Establish a safe harbor shielding carriers from liability for unintended or inadvertent blocking of calls based on information provided by the call authentication framework would be included under the law.
  • Require the FCC to report to Congress regarding the effectiveness of STIR/SHAKEN within one year of enactment, then re-evaluate its effectiveness every three years.  The FCC would also be given authority to mandate replacement or suspension of "STIR/SHAKEN" if the FCC "determines it is in the public interest to do so."
At this writing, a very similar House companion bill to the TRACED Act (H.R. 1602) has been introduced in March 2019 which appears to include most of the same reforms.
If you have questions about the rulemaking or pending robocall legislation, please contact Doug Bonner or Katherine Barker Marshall for assistance.

[1] Proposed Rule, Truth in Caller ID, 84 Fed. Reg. 7315 (March 4, 2019)
[2] 7316.
[6] Notice of Proposed Rulemaking, In the Matter of Implementing Section 503 of RAY BAUM'S Act; Notice of Proposed Rulemaking,Rules and Regulation Implementing the Truth in Caller ID Act of 2009, WC Docket No. 18-335, WC Docket No. 11-39 (Rel. Feb. 15, 2019), ¶22.
[7] Declaratory Ruling, Petitions for Declaratory Ruling Status of Wireless Messaging Service, WT Docket No. 08-7, FCC 18-178, at 10, ¶23. ( Dec. 2018)
[8] 84 Fed. Reg. 7317, ¶17.
[9] RAY BAUM'S Act, § 503(a)(2)(C), 132 Stat. at 1092 (definition of "voice service").
[10] 84 Fed. Reg. 7317.
[11] Id., ¶22.
[12] Id., ¶23.
[13] Id., ¶24.
[14] Public Notice, "CHAIRMAN PAI: CALLER ID AUTHENTICATION IS NECESSARY FOR AMERICAN CONSUMERS IN 2019" at (Feb. 13, 2019)("This goal should be achievable for every major wireless provider, interconnected VoIP operator, and telephone company-and I expect those lagging behind to make every effort to catch up.  If it appears major carriers won't meet the deadline to get this done this year, the FCC will have to consider regulatory intervention....")

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