MEDIA ADVISORY: FSF Scholars Submit Ex Parte Regarding the FCC's Digital Discrimination Proceeding

Free State Foundation President Randolph May and Director of Communications Policy Studies Seth Cooper submitted the attached written ex parte presentation to the FCC emphasizing the importance of the agency following Congress’s directive to account for “technical and economic feasibility” in considering alleged complaints of digital discrimination. Below are two paragraphs excerpted from the beginning of the ex parte submission:

In Section 60506(a) of the Infrastructure Investment and Jobs Act of 2021, Congress expressly stated that, in implementing the Commission's mandate to take steps to ensure that all Americans benefit from equal access, the agency must consider issues of “technical and economic feasibility.” Congress thereby dictated that broadband providers must remain free to make informed business judgments regarding matters such as the size of their investments in relation to the availability and cost of capital, the geographic reach of planned deployments by the provider and competitors, the cost of the underlying technologies employed considered for deployment, the timing of new deployments, and other similar considerations. They are all market-related factors affecting economic feasibility assessments.

The congressional requirement that economic feasibility factors be taken into account requires acknowledgement by the Commission that deployment and non-deployment decisions of broadband providers to certain locations routinely, and necessarily, involve business judgements that have absolutely nothing to do with invidious discrimination. When confronted with a complaint alleging discrimination, in addition to the above considerations, “economic feasibility” is properly informed by factors such as: (1) whether a grant-making entity (say, in the BEAD context) delineates the deployment areas that are being subsidized; (2) whether the area subject to question is receiving, or is slated to receive, federal or state subsidized build-outs; (3) whether another provider is already providing service, or is slated to offer service, at comparable speeds and with comparable quality of service metrics; (4) regulatory or procedural requirements that increase costs prohibitively; and (5) whether the provider does not provide service in the complainant’s area using the technology the complainant prefers. As explained in FSF’s comments and reply comments, when broadband providers make deployment decisions based on economic feasibility reasons such as those above, the Act forbids the Commission from treating those decisions as wrongful.

FCC Submits Report to Congress on Robocalls and Caller ID Scams

On December 23, the FCC submitted to Congress the latest version of its Report on Robocalls and Transmission of Misleading or Inaccurate Caller Identification Information. The annual report is required by the TRACED Act. It contains data regarding informal consumer complaints to the FCC regarding robocalls, Commission enforcement actions, and an overview of private efforts to combat unwanted and harmful robocalls.  

The report cites data indicating 37,736 informal consumer complaints were filed at the FCC regarding robocalls during the first eleven months of 2022. Thus, it appears likely that informal complaints about robocalls were slightly lower in all of 2022 compared to a year prior. There were 46,189 such complaints in 2021. Also, the report cites data indicating that 37,752 informal complaints regarding caller ID spoofing were filed in the first eleven months of 2022, indicating that yearly total for such complaints was notably less than the 57,075 complaints filed in 2021. (Note: A single filed complaint can involve more than one reported instance of an illegal robocall or a call from a spoofed ID.)

 

Among the actions taken by the FCC in 2022 to combat unwanted and illegal robocalls – many of which originate from foreign countries – the report acknowledged the Commission's 2022 Gateway Provider Order. The order requires gateway providers to respond to traceback requests within 24 hours, block calls that clearly are conduits for illegal voice traffic, and implement "known your upstream obligations." Under the order, gateway providers are required to apply STIR/SHAKEN caller ID authentication technology to all unauthenticated foreign-originated session-initiated protocol (SIP) calls with U.S. North American Numbering Plan (NANP) numbers by June 30, 2023. 

 

Regarding private efforts to combat robocalls and caller ID spoofing, the report provided an overview of the progress of the Industry Traceback Group to identify the path and origin of illegal robocalls in order to stop them. According to the report:

[B]etween January 1, 2022 and November 21, 2022, the Industry Traceback Group initiated over 2,600 tracebacks, a traceback initiation rate which is 10% higher than in 2021 and 20% higher than in 2020. The Industry Traceback Group also played a key role in combating the scourge of illegal robocalling campaigns from foreign-based providers. In addition to identifying 146 U.S.-based providers suspected of originating apparently illegal robocalls, the Industry Traceback Group also identified 82 foreign-based originating providers and 145 U.S. gateway providers. 

Additionally, the report notes that the Industry Traceback Group is working with providers to incorporate STIR/SHAKEN into the traceback process.  Hopefully, the expanded implementation of STIR/SHAKEN and traceback efforts will further curb illegal robocalls. 

However, it ought to be recognized that STIR/SHAKEN's utility is likely limited to the context of voice calls made using NANP numbers – and that it is not a technology that ought to be imposed by administrative agency rule on providers of text messaging services. 

That basic point is made in my January 4, 2023 Perspectives from FSF Scholars, "Innovation Will Protect Consumers From Illegal Text Messages Better Than New FCC Rules." As explained in that paper, the FCC has proposed a blocking and caller ID requirement on wireless providers for text messaging services despite the fact that there does not appear to be any solid evidence that text messages from invalid, unallocated, or unused numbers are a problem for wireless consumers. Wireless providers already provide up-front vetting for would-be senders of mass text messages. It is unlikely that such a costly mandate actually would reduce the volume of illegal robotexts and protect consumers. And although the Commission's notice of proposed rulemaking appears to favor requiring the STIR/SHAKEN to combat illegal texts, even the agency acknowledges that the technology doesn't exist for text messaging services. Voice and text messaging technologies are different, and so it should be no surprise that the best solutions to combatting illegal robocalls and robotexts also are different. For more details, see my Perspectives.

FCC Takes Further Steps to Stem the Tide of Illegal Robocalls

American consumers to continue to receive extraordinarily high volumes of unwanted and illegal robocalls. Youmail estimated that nationwide robocalls in the month of May 2022 totaled 4 billion. 

The FCC has recently announced the latest steps that it has taken to address the problem:

• On May 19, the Commission announced that nine state attorneys general have joined the agency's existing agreement with a majority of states "to share evidence, coordinate investigations, pool enforcement resources, and work together to combat illegal robocall campaigns and protect American consumers from scams." (The Commission's partnership with other states was the subject of an April 2022 blog post).

• On May 20, the Commission released an order in which it places new obligations on gateway providers that are the entry point for calls to the U.S. that originate from foreign countries. The requires gateway providers to: (1) "develop and submit traffic mitigation plans to the Robocall Mitigation Database" (2) "apply STIR/SHAKEN caller ID authentication to all unauthenticated foreign-originated Session Initiation Protocol (SIP) calls with U.S. North American Numbering Plan (NANP) numbers"; and (3) "respond to traceback requests in 24 hours, block calls where it is clear they are conduits for illegal traffic, and implement 'know your upstream provider' obligations."

• On June 6, Chairwoman Rosenworcel signed a Memorandum of Understanding on combatting robocalls with the top Canadian government agency official for telecommunications. 

It is widely known that majority of unwanted robocalls to American consumers originate from outside the U.S. Hopefully, these actions taken by the FCC will help reduce the mass number of illegal robocalls and ID-spoofing scams that target consumers. 

FCC Builds Partnership with States to Combat Robocall and Spoofing Scams

On April 7, FCC Chairwoman Jessica Rosenworcel announced that a majority of states have joined into a partnership with the Commission to investigate unwanted robocalls and caller ID spoofing scams. 

It is widely known that most of these consumer-harming scams originate from overseas, but the partnership will hopefully enhance investigations into illegal robocalls and spoofing – and help to significantly reduce them. According to the announcement, other states have been invited to participate in the partnership to investigate and combat bad robocalls and spoofing. Aside from this public sector initiative, my blog post from March 2 highlighted private sector efforts of the Industry Traceback Group (ITG) to protect consumers from these hazards. 

Supreme Court Makes a Sensible Ruling on Anti-Autodialing Statute

On April 1, the U.S. Supreme Court released its decision in Facebook v. Duguid regarding the scope of the federal statute that prohibits unwanted robocalls from "autodialers." Justice Sotomayor's opinion for the court, which was joined by seven other justices and unanimous in the result, sums up the anti-autodialing provision, the question before the court, and its ruling:

The Telephone Consumer Protection Act of 1991 (TCPA) proscribes abusive telemarketing practices by, among other things, imposing restrictions on making calls with an "automatic telephone dialing system." As defined by the TCPA, an "automatic telephone dialing system" is a piece of equipment with the capacity both "to store or produce telephone numbers to be called, using a random or sequential number generator," and to dial those numbers. 47 U. S. C. §227(a)(1). The question before the Court is whether that definition encompasses equipment that can "store" and dial telephone numbers, even if the device does not "us[e] a random or sequential number generator." It does not. To qualify as an "automatic telephone dialing system," a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator. 

As the Court notes, the FCC has interpreted the anti-autodialing provision to apply to text messages. At issue in the case was Facebook's sending of text messages to users whose numbers it had stored. This blog takes no view on whatever specific processes or techniques that Facebook used. Rather, the decision was important in rejecting an over-expansive definition of an "autodialer" that potentially would subject countless American's to potential claims under the TCPA:

Expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel. Duguid’s interpretation of an autodialer would capture virtually all modern cell phones, which have the capacity to "store . . . telephone numbers to be called" and "dial such numbers." §227(a)(1). The TCPA's liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses. See §227(b)(3) (authorizing a $500 fine per violation, increased to $1,500 if the sender acted "willfully" or "knowingly").  

Professor Daniel Lyons, a member of the Free State Foundation's Board of Academic Advisers, previewed the Court's just-released decision in his Perspectives from FSF Scholars paper titled "Trilogy of Supreme Court Cases Highlight Deficiencies in Anti-Robocall Statute."

Video of FSF Fireside Chat with FTC Commissioners Noah Phillips & Christine Wilson

To kick off the Free State Foundation's Thirteenth Annual Telecom Policy Conference, FSF President Randolph May moderated a Fireside Chat with FTC Commissioners Noah Phillips and Christine Wilson. Theodore Bolema, a member of the FSF Board of Academic Advisors, also participated. Policy topics included antitrust, data privacy, and Section 230 immunity for Big Tech platforms. Video of the March 19 event is now available online:

Report Reviews Industry Traceback Group's Efforts Against Unwanted Robocalls

On February 17, US Telecom released the Industry Traceback Group's (ITG) report, "Combatting Illegal Robocalls." The report highlights the ITG's progress and potential in addressing the extraordinarily high volume of unwanted and harmful robocalls received by Americans each day. Most of those calls originate from overseas and are route through four or more service providers, making traceback efforts a complex undertaking.

In July 2020, the FCC designated the ITG as the designated entity for coordinating industry efforts to trace the origin of suspected unlawful robocalls. As the report observes, ITG's primary focus is high-volume illegal robocall campaigns. Its operations are managed by a small team of employees and contractors who collaborate with industry and government personnel to identify the sources of those robocall campaigns. 

The report identifies some of the ITG's achievements in fighting robocalls in 2020: 

• Received 75 subpoenas/ civil investigative demands—up 275% from 2019 

• Conducted approximately 215 tracebacks per month— up 115% from 2019 and 975% in 2018  

• Initiated more than 2,500 tracebacks, representing hundreds of millions of calls 

• Supported nearly one dozen enforcement actions involving nine distinct federal and state enforcement agencies, targeting nearly 50 individuals and entities  

Another indication of the progress made by the ITG is reflected in the FCC's December 2020 TRACED Act Annual Report to Congress. According to the FCC's report:

The Industry Traceback Group's tracebacks have accelerated the investigation process. A single telephone call may pass through multiple providers from the point of origin to the destination. Until very recently, each link in the chain required a separate subpoena from the FCC, FTC, or other agency to the handling provider. The length of time it takes to find the suspected violator depends on how quickly investigators can get to the origin point of the calls. The more links in the chain, the longer the investigation time. The Industry Traceback Group’s efforts reduce the number of subpoenas agencies must issue to do the same work. For example, in a recent case with four links between the originating provider and the customer’s provider, the Commission worked with the Industry Traceback Group to trace the origin of the call. As a result, a traceback that would have taken at least four separate subpoenas and 2 to 3 months to complete was successfully traced back in less than 24 hours. 

The ITG has its work cut out for it. The YouMail Robocall Index estimated that 4.6 billion robocalls, amounting to 14.1 per person, were sent during the month of February 2021 – the highest volume seen in the last twelve months. But the ITG has compiled a strong track record in coordinating with enforcement agencies and reducing traceback times, and it hopefully will build on that record in 2021. 

Court Rules that Berkeley's "Overwarning" Ordinance on RF Emissions is Preempted

On September 17, the U.S. District Court for the Northern District of California ruled that a 2015 City of Berkeley ordinance requiring retailers to provide specific warning labels regarding cellphone radio frequency (RF) emissions for point-of-sale purchases is preempted by the FCC's regulatory actions. 

After analyzing the Commission's 2019 RF Order as well as the agency's Statement of Interest filed in the case, the District Court concluded:  

Given the specificity of the warning required by the Berkeley ordinance, the implied risk to safety if the warning is not followed (a risk the FCC has concluded does not exist), and the acknowledged 'controversy concerning whether radio-frequency radiation from cell phones can be dangerous if the phones are kept too close to a user's body over a sustained period,'… the FCC could properly conclude that the Berkeley ordinance – as worded – overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC.

The District Court's ruling in Berkeley v. CTIA applied Skidmore deference rather than Chevron deference to both the 2019 RF Order and the Statement of Interest. The court held that even by according to the less deferential standard the Berkeley ordinance conflicted with federal policy articulated by the Commission. Along the way, the court provided an insightful analysis of conflict preemption doctrine, savings provisions, and the Third Circuit's 2010 decision in Farina v. Nokia. For more on this case, see my blog post from June.  

New FCC Speed Test App Now Available

On August 3, the FCC released an updated and upgraded edition of its FCC Speed Test app for determining a user's Wi-Fi and cellular upload and download speeds as well as other performance metrics. The new app, which tests 5G wireless speeds, is available for both Android and iPhone operating systems. For more, see the Commission's press release (which includes links for downloading the new app) and this write-up by Gary Arlen with Multichannel News.

FCC Order Encourages Blocking of Bad Robocalls

At its July 17 public meeting, the FCC took its latest step to curb unwanted and unlawful robocalls. The Commission adopted an order to implement the TRACED Act by establishing rules for two safe harbors from legal liability for voice service providers that block robocalls that they believe are unwanted or harmful. Those legal safe harbors will encourage voice service providers to combat unwanted and unlawful robocalls. Paragraph 19 of the Commission's order sums up the action taken in its order:

[W]e adopt a safe harbor from liability under the Communications Act and our rules for terminating voice service providers that block calls based on reasonable analytics designed to identify unwanted calls, so long as those take into account information provided by STIR/SHAKEN (or, for non-IP based calls, any other effective call authentication framework that satisfies the TRACED Act) when such information is available for a particular call. And we establish a second safe harbor enabling voice service providers to block traffic from bad-actor upstream voice service providers that continue to allow unwanted calls to traverse their networks. Finally, we require that blocking providers furnish a single point of contact to resolve unintended or inadvertent blocking, and emphasize that, when blocking, they should make all reasonable efforts to ensure that critical calls, such as those from Public Safety Answering Points (PSAPs), are not blocked and that they should never block calls to 911. 

Importantly, the order includes provisions for allowing blocked callers to reach voice service providers and seek the undoing of blockages of legit calls. The point of the safe harbors is to incentive blocking of unwanted and illegal calls and thereby protect consumers – and not to censor speech. This is an important measure adopted by the Commission and hopefully will lead to the reduction of bad robocalls. 

Consumers Receive High Volumes of Spam Calls, Low Volumes of Spam Texts

Americans are inundated with high numbers of unwanted robocalls, but they receive much lower numbers of unwanted text messages. A survey released in December by Zipwhip, a leading provider of text messaging solutions for businesses, shows that whereas 51% of respondents "often" receive spam over the phone, only 18% "often" receive spam texts. 

The survey findings reaffirm the importance of the Commission's Title I non-regulatory policy for texting. Given the freedom and flexibility to implement solutions, text messaging service providers – not Title II public utility-like restrictions – have successfully curbed unwanted messages. Those providers should remain free to pursue innovative solutions to maintain quality of service. 

According Zipwhip's survey, about 51% responded that they receive spam "often" over the phone and 83% receive spam at least "somewhat often" over the phone. Furthermore, 70% receive spam "often" over email and 92% receive email spam at least "somewhat often." However: "Only 18% of respondents said they get text spam 'often' and only 17% said they receive scam attempts 'often.' Most said they 'rarely' receive these types of messages (41% and 40% for spam and scam, respectively)." Illegal scam rates also are notably higher for voice calls and emails than for texts.

Importantly, the Zipwhip survey figures regarding low rates of unwanted texts vindicates the FCC's determination in its Wireless Messaging Service Order (2018) that text messaging services are lightly- or non-regulated "information services" under Title I of the Communications Act. That determination was amply supported, first and foremost, by the fact that wireless text messaging service capabilities fit the statutory definition of "information services." But the Commission also justified its Title I classification of wireless text messaging services with the compelling policy rationale that entrepreneurial innovation protects subscribers from spam and unwanted texts better than the strictures of public utility regulation. The 2018 Order stated: "In the absence of a Commission assertion of Title II regulation, wireless providers have employed effective methods to protect consumers from unwanted messages and thereby make wireless messaging a trusted and reliable form of communication for millions of Americans." Survey findings of markedly lower rates of unwanted communications via text messaging compared to other media platforms indicate that, a year after the 2018 Order, the policy for non-regulation of texting is succeeding in protecting consumers.

Zipwhip survey figures regarding the high rates of robocalls and emails are consistent with other reports. According to YouMail's Robocall Index, about 58.5 billion robocalls were sent nationwide in 2019. A YouMail analysis found that while about 27% of robocalls provided consumers with important alerts or reminders for things such as a school closure or doctor's appointment, the remaining 73% of robocalls are unwanted or spam. And about 25% of robocalls are illegal scams. It is elsewhere estimated that spam constituted around 55% of global email traffic in 2019. 

The problem of unwanted robocalls and the closely related problem of caller ID spoofing prompted Congress to pass the TRACED Act, which President Trump signed into law on December 31, 2019. Under the TRACED Act, voice service providers are required to make available to consumers – free of charge – technologies to authenticate calls and block robocalls. The Act extends the statute of limitation and increases fines for making unwanted robocalls. Additionally, the Act directs the FCC to undertake rulemakings to further ensure subscribers are protected from one-ring scams as well as other unwanted calls or texts. 

In its implementation of the TRACED Act, the Commission should rightly take aim at the sky-high number of scam calls as well as other unwanted robocalls. And it should exercise its oversight authority over voice service providers to ensure consumers are protected. At the same time, it is imperative that the Commission adhere to its Title I policy for text messaging, which has an established track record in protecting consumers. 

President Trump Signed the TRACED Act

On December 30, 2019, President Donald Trump signed the TRACED Act into law. As highlighted in my post from December 13, the TRACED Act directs a number of federal agency actions toward combatting unwanted robocalls as well as ID spoofing. The President and the 116th Congress deserve credit for addressing those important consumer protection issues. Now it's up to the FCC and other agencies to begin implementing the law and hopefully help reduce substantially the illegal scams and other unwanted being calls made to American consumers. 

FCC Reaffirms RF Emissions Standards

On December 4, the FCC released an order to retain its existing limits on radiofrequency (RF) emissions. According to paragraph 2 of the Commission's order: 

After reviewing the extensive record submitted in response to that inquiry, we find no appropriate basis for and thus decline to propose amendments to our existing limits at this time. We take to heart the findings of the Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that "[t]he weight of scientific evidence has not linked cell phones with any health problems." Despite requests from some to increase and others to decrease the existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established international standards.

Occasionally, local governments face pressure to assume a new role for themselves as wireless device health regulators based on spurious claims about RF emissions. And some local governments have even made misguided attempts to regulate wireless devices. Local governments ought to take note of the Commission's order and bring it to the attention of any citizens inquiring about RF emissions. The Commission, which has jurisdiction over RF emissions standards, has taken stock of the best evidence and analysis of the FDA in renewing its conclusion that cell phones are safe to use.

Legislation to Combat Robocalls Advances in Congress

On December 4, the U.S. House of Representatives passed the TRACED Act (S. 151) by a 417-3 vote. The House version mergers provisions of S. 151 passed by the Senate in May with the Stop Bad Robocalls Act (H.R. 3375). H.R. 3375 was passed by the House in July. Among its provisions the Engrossed House bill for S. 151 would do the following:

• Require carriers to implement call-authentication technology consumers and small businesses free of charge;
• Require carriers to provide opt-in or opt-out robocall-blocking to consumers free of charge;
• Authorize the FCC to assess penalties of up to $10,000 for each unwanted robocall for those intentionally violating telemarketing restrictions;
• Extend to four years the statute of limitations for Commission enforcement actions against illegal robocalls; 
• Require the Commission to make annual reports to Congress on anti-robocall enforcement;
• Require the Commission to conduct a rulemaking to protect subscribers from unwanted calls or texts from unauthenticated numbers by using new authentication methods; 
• Require the Commission to conduct a rulemaking on combatting one-ring scams meant to impose charges on unsuspecting consumers that call them back; and
• Require the Commission to establish a process for certifying when carriers have or have not participated in private initiatives to trace unlawful robocalls to their source, and also to report on such participation as well as follow through with necessary enforcement actions.

According to reports, the similarity of the House's bill to the Senate bill makes it likely that the Senate will concur in the changes or otherwise reach consensus with the House and that the TRACED Act or "Pallone-Thune bill" will go to President Donald Trump for signature.

Additionally, on December 11, the Senate Commerce, Science, and Transportation Committee passed a substitute version of the Data Analytics Robocall Technology Act of 2019 or "DART Act" (S. 2204). The DART Act would require the FCC to issue a rulemaking on maintaining a list of numbers that are not eligible to be blocked by carriers, such as emergency- or weather-related numbers. The bill also would require the Commission to report to Congress on implementation of call-blocking and caller-ID authentication.

FCC Should Follow District Court's Common-Sense Ruling on Autodialers

Free State Foundation President Randolph May and I have previously written about the federal ban on "autodialers" contained in the Telephone Consumer Protection Act (TCPA). In our Perspectives from FSF Scholars paper, "The FCC Should Stop Runaway Liability for Smartphone Owners," we called on the Commission to adopt a sensible definition of "autodialers" that tracks with a plain reading of the TCPA and its intent to combat commercial automated mass robocallers. Going forward, the Commission ought to consider the common-sense reading of the TCPA's "autodialer" provision by a federal district court's decision from September 2019. 

In Smith v. Premier Dermatology, Judge Jorge Alonso of the U.S. District Court for the Northern District of Illinois wrote:

[T]he plain text of the statutory definition provides that an ATDS [autodialer] is a device that (1) stores or produces telephone numbers that (2) were randomly or sequentially generated and (3) dials them automatically. 

Because the Court finds that the statutory definition is not ambiguous, it need not reach plaintiffs' arguments about "the context and the structure of the statutory scheme." …But even if the Court were to consider them, they are unpersuasive. 

The District Court's conclusion that the TCPA's language is unambiguous as well and interpretation of prohibited "autodialer" capabilities are both contrary to the Ninth Circuit's decision in Marks v. Crunch San Diego LLC(2018). As Mr. May and I explained in our Perspectives paper, the Ninth Circuit deemed the relevant statutory language and ambiguous and misinterpreted "autodialers" to include callers using equipment that is merely capable of dialing ortexting a stored telephone number. The court disregarded the TCPA's provision that autodialer equipment also must have number generating capability – and dial the telephone numbers automatically. In consequence, the Ninth Circuit's decision in Marks makes anyone with a smartphone potentially liable under the TCPA for making a single unwanted phone call or text. (I also addressed the autodialer issue in my Perspectives paper, "The FCC Should Halt Bogus Lawsuits Threatening Popular Texting Services.")

A federal district court decision does not create binding precedent. So the legal uncertainty caused by the Ninth Circuit's misguided decision in Marks remains a problem that requires the FCC's attention. However, the Commission should take stock of the District Court's sensible ruling in Premier Dermatology. And the Commission should adopt a narrower autodialer definition that targets mass robocallers while avoiding open-ended liability for all smartphone owners.

Report Indicates Robocallers are Making Heavy Use of Smaller Networks

On September 12, Transaction Network Services (TNS) released its "2019 First Half Robocall Investigative Report." According to the TNS Report: "The data suggest that while top carriers are making inroads in the fight against robocalls, VoIP providers and smaller regional carriers need to take more aggressive action as bad actors shift focus to their networks." The top six U.S. carriers represented 70% of total calls during the first half of the year, "but only 12% of high-risk calls are from numbers owned by these carriers." 

The TNS Report found that "[R]obocallers may shift focus to smaller, regional carrier networks." As pointed out in a September 12 USA Today article, many smaller carriers appear to be behind the major carriers in implementing STIR/SHAKEN technology to verify that numbers displayed on Caller ID actually placed calls. And it appears that efforts by major carriers may be responsible for reducing robocalls originating in their respective networks. 

As mentioned in my August 23 blog post, a dozen major carriers have entered into an agreement with all fifty State Attorneys General to combat illegal and unwanted robocalls and caller ID spoofing, including by implementing STIR/SHAKEN. On legislative efforts in Congress to protect consumers from scam and unwanted calls, see my April 15 blog post.

FCC Commissioner O'Rielly Calls Out Montana's Misuse of 911 Tax Dollars

If states charge consumers taxes for 911, then every tax dollar collected ought to be directed to 911-related services. Yet, as I explained in a January 2019 blog post, some states divert large amounts of 911 tax dollars to completely unrelated matters. That blog reviewed the FCC's 10th Annual Report on State 911 Taxes, which identified individual states that spent some $285 million in 911 tax dollars on non-911 purposes in 2017. 

On September 9, FCC Commissioner Mike O'Rielly sent a letter to Montana's Governor Steve Bullock in which he stated that, according to 2018 filings, "Montana's operating statute allows such diversion, permitting the Montana Legislature transfer for functions unrelated to 9-1-1 communications and the corresponding answer centers." Commissioner O'Rielly requested that Gov. Bullock "initiate a process to reverse this blatant misappropriation of funds and provide a firm commitment that such practice will not occur again."

Montana was identified in the FCC's 10th Annual Report for diverting about $2 million in 911 tax dollars to other things. Other states listed in the report diverted even more. Commissioner O'Rielly is right about what's wrong with deliberately misusing 911 tax revenues. Continuing to call public attention to states' misuse of those revenues is one important means of addressing the problem. But repeated warnings should not be allowed to continue unheeded. As I mentioned in my blog post, the Commission should be prepared to follow through on report warnings that states diverting 911 tax revenues may be ineligible for matching federal grant awards.

A Principled Call for a National Consumer Privacy Protection

On September 10, Business Roundtable sent a letter signed by 31 CEOs to leaders of Congress, calling for a comprehensive consumer data privacy law. The letter states:

Consumers should not and cannot be expected to understand rules that may change depending upon the state in which they reside, the state in which they are accessing the internet, and the state in which the company’s operation is providing those resources or services. Now is the time for Congress to act and ensure that consumers are not faced with confusion about their rights and protections based on a patchwork of inconsistent state laws. 

Accompanying the letter, the Business Roundtable released a "Framework for Consumer Privacy Legislation." The Framework includes a set of principles regarding protections for consumers and requirements for responsible collection, use, and sharing of personal information by businesses. It endorses a national consumer privacy law that would pre-empt state and local government provisions regarding data collection, use, and sharing. And it provides for the Federal Trade Commission (FTC) to be the enforcer of the national consumer privacy law, with State Attorneys General being permitted to bring enforcement actions in federal court in certain instances. Also, the national consumer privacy law would not provide a private right of action. Congress ought to take seriously the principles contained in the Framework in establishing a national consumer privacy law.

Many of the principles and concepts touched on in the letter and Framework were addressed at the Free State Foundation's privacy policy seminar, held on June 26, 2019. The seminar was titled: "Privacy Regulation: Why, What, and When?" The seminar included a keynote address by FTC Commissioner Noah Phillips, a panel discussion, and a closing keynote by Senator Marsha Blackburn. The YouTube video of FSF's privacy policy seminar may be found here. 

For several years, Free State Foundation President Randolph J. May and I have recommended a uniform federal standard to protect consumer privacy on the Internet. For further discussion of privacy policy see FSF Board of Academic Advisors member Theodore Bolema's Perspectives from FSF Scholars paper: "Protecting Privacy on the Internet: Key Principles for Any Reform." 

State Attorneys General and Voice Providers Reach Accord to Address Robocalls

As widely reported, all 50 state attorneys general and 12 major voice service providers have signed an agreement to combat illegal and unwanted robocalls and caller ID spoofing. The agreement provides for state AG cooperation with voice service providers that implement eight "anti-robocall principles." Those principles are: Offer Free Call Blocking and Labeling; Implement STIR/SHAKEN; Analyze and Monitor Network Traffic; Investigate Suspicious Calls and Calling Patterns; Confirm the Identity of Commercial Customers; Require Traceback Cooperation in Contracts; Cooperate in Traceback Investigations; and Communicate with State Attorneys General. 

Roundup on Latest Actions to Combat Unwanted Robocalls

A lot is happening on multiple fronts to reduce the high volumes of unwanted and scam robocalls. Here's a sample:

Congress: On May 23, 2019, the Senate passed the TRACED Act, which would enhance the FCC's authority to stop caller ID spoofing and unwanted robocalls. I discussed the legislation in a prior blog post. And on July 24, 2019, the House passed similar legislation, the Stopping Unwanted Robocalls Act (H.R. 3375). 

FCC: On August 5, 2019, the FCC released an order that adopts new rules for combatting caller ID spoofing and unwanted robocalls that originate overseas. 

Industry: On August 14, 2019, T-Mobile and AT&T announced a partnership for implementing cross-network caller ID verification based on SHAKEN/STIR standards in order to tackle caller ID spoofing. In a prior post, I described a similar cross-network agreement between T-Mobile and Comcast. And in July 2019, AT&T announced it would make automatic robocall-blocking technology available to its subscribers as a free feature of AT&T's Call Protect program.