The FCC’s TCPA dockets did not witness many developments from the beginning of 2022 until February. However, beginning in February and into March, Chairwoman Rosenworcel’s office and the Enforcement Bureau were busy negotiating new robocalling partnerships with state regulators and issuing enforcement orders against suspected or apparent violations. Those activities expanded in April by the issuance of new guidance and a new pricing structure for the Reassigned Numbers Database. We cover each of these topics below.
State-Federal Partnership on Investigations
Since Chairwoman Rosenworcel’s confirmation as the FCC Chair in December 2021, she has put on the top of her agenda building a partnership with state regulators – attorneys general and enforcement agencies. During February, March, and April 2022, Chairwoman Rosenworcel signed memoranda of understanding (MOUs) designed to allow greater cooperation and sharing of information and other investigation intelligence with regard to illegal robocalls and telephone scams. These MOUs also reflect the intention of close collaboration to enforce consumer protection laws concerning robocalls. The FCC currently has MOUs in place with twenty-eight (28) states and more could be in the offing.
After years of discussion and planning, the FCC’s Reassigned Numbers Database opened for commercial use on November 1, 2021. Now business callers can register for a paid subscription with the FCC’s designated Administrator, SomosGov, to query both the connection and permanent disconnection status of over 152 million U.S. telephone numbers through this web-based platform. This information can let subscribing callers know whether customers who had previously given consent to receive calls and texts from the business have disconnected their phone numbers and whether these phone numbers have since been reassigned to others. By reducing the likelihood of unwittingly making calls to unintended recipients, the Reassigned Numbers Database is expected to prevent millions of “unwanted calls intended for someone who previously held their phone number,” which should provide callers some protection against TCPA allegations of calling without adequate prior consent.
Initially adopted in December 2018, the Reassigned Numbers Database proposal and framework underwent many rounds of public comments on various aspects of its implementation, had nearly three years of preparation, and had a three-month beta test. Since April 2021, nonexempt communications service providers have been reporting permanent disconnections to the Reassigned Numbers Database each month, accumulating data about over 152 million U.S. telephone numbers (including toll-free numbers). Smaller communications service providers began reporting their records into the Reassigned Numbers Database on October 15, 2021.
After adopting orders reflecting the majority of implementation deadlines set by the TRACED Act and the Supreme Court’s highly anticipated TCPA decision interpreting the statutory definition of automatic telephone dialing system in the first half of 2021, all eyes are on what the FCC has planned. Midsummer seems like a good time for a year-to-date review to track where the FCC has been and where it is headed next in its TCPA oversight and enforcement roles.
STIR/SHAKEN Call Authentication Framework
Last week, the FCC adopted its January 2021 proposal and issued a Report and Order establishing what the FCC describes as “a fair and consistent process” that a voice service provider can use to challenge a decision by the STIR/SHAKEN framework Governance Authority to strip that provider of the “digital token” that authenticates calls on that provider’s Internet-Protocol (IP) networks.
The FCC recently reported a decrease of approximately 60% of consumer robocall complaints and a drop of approximately 30% in volume of “unwanted robocalls” that were placed in the first half of 2020 as compared to the first half of 2019. Considering that the FCC adopted the first-of-its-kind “call blocking by default” framework in June 2019, some might wonder: Does this mean the FCC’s “call blocking by default” framework has been successful?
While the FCC cited to voice service providers reporting that they have so far only discovered less than 1% of – or as few as 0.2% of – blocked calls to be false positives, the seemingly low percentage still means that millions of lawful and wanted calls have been erroneously blocked. For example, Hiya reported that it has blocked nearly 800 million calls in 2019, which could mean that 0.2% of which – 1.6 million calls – had been blocked in error in that year. Likewise, Nomorobo blocked over 512 million robocalls in 2019; its blocking platform may have affected the delivery of 1.024 million lawful calls in that year.
The long awaited draft technical requirements for the FCC’s reassigned numbers database was released today. At the time of the adoption of an order establishing this database in December 2018, the FCC tasked its North American Numbering Council (NANC) with studying several technical issues that are prerequisite to ensure the effectiveness of this database within a year. However, stating that the task was unexpectedly complex, the NANC sought two extensions of the deadline in June and in September 2019, using the additional time to formulate baseline technical requirements for the database.
As predicted, amendments to the TCPA – in the form of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the “TRACED Act”) – were signed into law by the President of the United States on December 30, 2019. The Chairman of the Federal Communications Commission (FCC) applauded this milestone on Twitter, commenting: “[T]he TRACED Act was signed into law, giving the FCC and law enforcement greater authority to go after scammers.” As the saying goes, with great power comes great responsibility: the enactment started the countdown for a long list of actions that the FCC is required to take during 2020 and beyond. This will add to the already active TCPA dockets at the FCC.
We share below the timeline for these actions to help our readers anticipate and prepare for the regulatory activities that will ensue. We summarized the content of these required FCC actions previously at this post.
Senate Bill 151, now called “the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (the “TRACED Act”), has been reconciled with the House of Representatives’ bipartisan bill House Bill 3375 and was passed in the House on December 4, 2019. This revised amendment has been returned to the Senate for a final vote and is expected to become final legislation “if not this week, then next week,” according to the bill’s sponsor, Representative John Thune. Thus, the prospects for passage of TCPA legislation currently look quite positive.
As drafted, the legislation will kick off a number of activities by the FCC, and may, as a practical matter, require the agency to take prompt actions on long-awaited rulings on critical statutory definitions. We highlight below some of the most notable revisions in the TRACED Act made since July 2019.
While the FCC has a record open to adopt guidance and a new definition for what it considers as an “automatic telephone dialing system” (ATDS) and related TCPA matters, there appears to be growing consensus on “Robocall” legislation in the two houses of Congress that may be moving TCPA legislation closer to reality. On the heels of the Senate passing Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”)Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”), the House of Representatives yesterday introduced a new bipartisan bill – House Bill 3375 – that would bolster the prospects that Congress may be able to pass legislation this year.
The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading
After several proceedings and requests for comment, the FCC has approved the creation of a single, centralized reassigned numbers database—a new resource to identify and avoid calling reassigned numbers. Ideally, the proposed database will help businesses in identifying numbers that are being recycled before they are called, thus helping to cut down on the number of calls consumers receive by mistake. This alert outlines the framework of the new database, including access, administration, types of information collected, usage, and potential costs and benefits.
Read the full alert.