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.
The FCC’s Enforcement Bureau took several actions in mid-February 2022. It had been over half a year since the deadline for voice service providers (except those that were granted exemptions) to implement the FCC’s STIR/SHAKEN authentication framework passed. The FCC expressed its view that VoIP providers Bandwidth and Vonage had failed to fully implement the authentication framework in their networks and had not met the conditions in earlier exemptions that the Wireline Competition Bureau granted to them in December 2020. As a result, their exemptions were revoked and the FCC referred the non-matter to the Enforcement Bureau for appropriate actions on February 17, 2022.
The Enforcement Bureau made a big statement on February 18, 2022, when it proposed a $45 million fine – the largest TCPA robocall fine in FCC history – against Interstate Brokers of America. The violator was found by the FCC to have “conducted an apparently illegal robocall campaign,” which involved over 500,000 illegal robocalls in March 2022, “to sell health insurance under the pretense that the annual enrollment period had been reopened due to the coronavirus pandemic.” Following investigation after being alerted by the Industry Traceback Group of the suspected illegal robocall traffic in March 2022, the Enforcement Bureau proposed to find that the violator acted with intent and proposed to hold the owner of the violator company personally liable for the fines.
Throughout February and March 2022, the Enforcement Bureau had also been deeply enmeshed in investigating and sending cease-and-desist letters to voice service providers suspected of originating or facilitating illegal robocall traffic. As of March 22, 2022, the Enforcement Bureau announced that it had provided these warnings to eighteen (18) providers. The letters reportedly included admonishments and warned of the potential consequence of being removed from the FCC’s Robocall Mitigation Database, which would mean that the provider’s traffic could be blocked by downstream voice service providers. Chairwoman Rosenworcel attributed some of these enforcement efforts to the recently announced state-federal partnership, as some FCC investigations were bolstered by findings from some state attorneys general.
Reassigned Numbers Database
We last reported in November 2021 that the FCC’s much-anticipated Reassigned Numbers Database opened for commercial use. After an initial period of operation, the FCC decided on April 8, 2022, to lower the monthly subscription fee to the Reassigned Numbers Database to make it more affordable and encourage wider adoption by callers. Depending on the length of the subscription term, the discount would range from 25% to 40% of the initial pricing in use since November 2021. The new pricing structure is scheduled to take effect on April 27, 2022.
The Consumer and Governmental Affairs Bureau – which was tasked with administering Reassigned Numbers Database-related matters – also issued a Public Notice on April 7, 2022, in response to inquiries from callers to clarify that a caller using agents to query the Reassigned Numbers Database is permissible and continues to protect the caller under the safe harbor that the FCC adopted in December 2018.
Related to the Reassigned Numbers Database, we expect the FCC to consider a Request for Waiver from fee requirements filed by Hustle, Inc. on March 30, 2022, in the coming months. According to Hustle, its clients – “entities in the nonprofit, education, political, and government sectors” – are eager to utilize the Reassigned Numbers Database but have been deterred by the pricing structure, due to the small size of those businesses and their typical profile of sending low-volume text messages one at a time.
The FCC may take further action soon to address the pending ringless voicemail petitions that we last briefed in September 2021. Chairwoman Rosenworcel on February 2, 2022, announced that she had circulated an item internally at the FCC. While the details have not been made public in draft form, the announcement suggested that the item, if adopted, would deny the pending petitions and would “require callers to obtain a consumer’s consent before delivering a ringless voicemail.” However, given that no drafts have been published and some time has passed since the February 2022 announcement, it is possible that some substantive changes to Chairwoman Rosenworcel’s proposal are being prepared behind the scenes.
Finally, a recent statement from Chairwoman Rosenworcel also continues to suggest that the FCC is trying to regain some grounds for its TCPA enforcement authority following the Supreme Court’s April 2021 decision in Facebook v. Duguid: “[F]or this agency to be truly effective when it comes to stopping robocalls more authority is needed. For starters, the decision last year by the Supreme Court in Facebook v. Duguid narrowed the definition of autodialer under the Telephone Consumer Protection Act, which could lead to less consumer protection from these annoying calls. We need to fix that. We also need more tools to catch those behind these calls, including the ability to seize assets to stop them in their tracks and even the authority to enable the Federal Communications Commission to go to court directly and collect against these bad actors—each and every one of them.” It remains to be seen whether the further actions the Chairwoman called for will come from the legislature or from federal agencies.