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."

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. 

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. 

Supreme Court Strikes Down Exemption from TCPA's Robocaller Ban

On July 6, the U.S. Supreme Court released its decision in Bar v. AAPC. Although significantly divided, enough Justices could agree that the robocall ban exemption bestowed on government debt collection in 2015 was unconstitutional under the First Amendment. But the Court severed the exemption for government debt collection from the rest of the Telephone Consumer Protection Act of 1991 and upheld the remainder of the Act. In so doing, the Court rejected the Petitioners' interesting First Amendment equal treatment claim that the robocall ban should have been lifted entirely and all robocalls allowed. 

Free State Foundation President Randolph May and I have addressed problems involving other aspects of the TCPA that merit action by the FCC in prior Perspectives from FSF Scholars papers, available here and here.

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. 

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.

Plaintiff Not Going Away in Dubious Lawsuit Threatening Texting Services

On September 18, Plaintiff John Salcedo filed a request with the U.S. Court of Appeals for the Eleventh Circuit for a rehearing en banc in Salcedo v. Hanna. My Perspectives from FSF Scholars paper titled "The FCC Should Halt Bogus Lawsuits Threatening Popular Texting Services" analyzed the Eleventh Circuit's panel decision in Salcedo. The case is a putative class action in which the alleged violation of the Telephone Consumer Protection Act of 1991 (TCPA) was a single unsolicited text message by an attorney to his former client. The Eleventh Circuit panel's decision in Salcedo acknowledged that just a single allegedly text message constitutes an alleged violation under the FCC's current interpretation of the TCPA provision prohibiting "autodialers." Although the Eleventh Circuit held against the Plaintiff for other good reasons, this latest filing indicates the lawsuit isn't going away – at least not yet. 

Salcedo is a case in point for why the FCC needs to modify its TCPA rules to target the real problem robocallers that Congress had in mind rather than leave the door open to lawsuits that appear frivolous. For more, read the Perspectives paper.  

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.

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. 

FCC to Hold Summit on Implementation of anti-Robocall and anti-Spoofing Tech

 On July 11, FCC Chairman Ajit Pai will convene a summit on the voice services industry's implementation of SHAKEN/STIR, a new technology designed to authenticate caller ID and so prevent illegal robocalls and spoofed caller ID calls. Information about the summit is provided in the FCC's Public Notice and press release.

New Intercarrier Agreement to Implement Anti-Robocall Safeguards

On April 17, T-Mobile and Comcast announced the launch of “cross-network robocalling protection built on STIR/SHAKEN standards” and their partnering to provide caller ID verification and alert voice subscribers to illegal robocalls and scammers. As announced by the two providers and as described in press reports, T-Mobile and Comcast are beginning to authenticate calls between their networks.

 

T-Mobile is now operating CallerVerified, its implementation of SHAKEN/STIR protocol, in a number of its devices and with more devices to be added. Later this year Comcast Xfinity Voice home subscribers will see caller ID verification messages. Comcast previously announced a similar partnership with AT&T, and T-Mobile expects to reach similar arrangements with AT&T and Verizon in the very near future.

On legislative efforts to combat illegal and unwanted calls, see my April 15 blog post: "TRACED Act Would Help Protect Consumers From Illegal Robocalls."

TRACED Act Would Help Protect Consumers From Illegal Robocalls

Americans are being bombarded by illegal robocalls and spoofed calls from scammers. A bill approved unanimously by the Senate Commerce Committee on April 2, if ultimately enacted, would offer welcome help. The TRACED Act would sharpen the FCC's authority to penalize bad actors. If it becomes law, the Act also would ensure that voice providers implement new technologies to protect consumers from unwanted and fraudulent calls. 

A December 2018 order by the FCC stated that Americans received an estimated 30 billion robocalls in 2017. The problem has been growing. According to YouMail's Robocall Index, American consumers received 5.2 billion robocalls in March 2019 alone. Not all robocalls are illegal, as many Americans benefit from doctor's appointment reminders and school closure notifications. But an extraordinarily high number of mass-scale autodialed calls are unauthorized and violate Section 227 of the Communications Act. 

Additionally, scammers have engaged in "spoofing" or mass manipulation of caller ID information in order to deceive consumers about the origin of incoming calls, thereby facilitating fraud schemes. A Senate Report accompanying the RAY BAUM's Act of 2018 cited survey findings that "spoofing fraud affected 17.6 million Americans" over a 12 month period, "with that fraudulent activity costing them $8.6 billion." The cited survey was from 2014, and most believe that the frequency of spoofing and extent of losses caused by spoofing has climbed higher. 

Enter the TRACED Act, short for the "Telephone Robocall Abuse Criminal Enforcement and Deterrence Act." If the TRACED Act becomes law, it would bolster the FCC's authority to combat robocalls and spoofed calls. 

Importantly, the TRACED Act would direct the FCC to require voice providers to implement new SHAKEN/STIR technologies to authenticate caller ID information and thereby prevent spoofed calls and also block illegal robocalls. (The acronyms stand for "Signature-based Handling of Asserted information using toKENs" and "Secure Telephone Identity Revisited.") The Commission would be required to implement this directive for robocalls within 18 months of the Act becoming law and within 12 months for spoofed calls. The Commission would be empowered to adopt certain safe harbors that would shield voice providers from civil liability for pro-actively blocking calls using the SHAKEN/STIR system. 

Furthermore, the TRACED Act would establish a federal inter-agency task force headed by the FCC to consider opportunities and obstacles to combatting robocalls and spoofing. The working group would include federal agencies such as the Department of Justice, the Department of Homeland Security, and the Federal Trade Commission. State enforcement authorities would also be working group participants. Broader agency participation may be helpful because a high number of robocalling and spoofing schemes originate overseas. Under the Act, the interagency group would be required to send a report to Congress detailing prosecutions for robocalling and spoofing and identifying continuing obstacles to better protection for consumers. 

To its credit, the FCC already has proposed to implement anti-spoofing provisions contained in the RAY BAUM's Act of 2018. In February, the Commission issued its first Report on Robocalls, outlining the challenges and its ongoing initiatives to combat them. And in November 2018, Chairman Ajit Pai demanded major voice service providers adopt the SHAKEN/STIR system for call authentication by this year. 

Under the TRACED Act, the FCC also would have increased authority to penalize robocallers and spoofers that intentionally violate Section 227's "autodialing" with fines of up to $10,000 per violation. Of course, the Commission already has authority to pursue alleged autodialers with fines of up to $500 per violation. To date, robocalling and other autodialing activities also have prompted a swath of class action civil lawsuits that can include treble damage awards. But Commission authority to pursue heightened sanctions may help stop bad actors, provided the FCC adopts a clearer and narrower definition of prohibited "autodialing" under existing law. (Free State Foundation President Randolph May and I address that definitional issue in a February 2019 Perspectives from FSF Scholars paper.) 

A broad-based bipartisan consensus has emerged in support of the TRACED Act. The Senate Commerce Committee's 26-0 vote of approval for S.151 ought to encourage the full Senate to take up and pass the bill. Furthermore, the Senate Subcommittee on Communications, Technology, Innovation, and the Internet held a hearing on the Act on April 11. A companion bill, H.R. 1602, has been introduced House of Representatives.

On the merits, the TRACED Act is sound. To better combat robocallers and caller ID fraudsters, the 116th Congress should give the TRACED Act prompt consideration.

AT&T Offers Tools to Stop Robcalls and Spoofed Calls

At its public policy blog, AT&T Communications Chief Legal Officer Bruce Byrd recounts AT&T's efforts to combat robcalls that he highlighted at a Department of Justice-hosted forum on tech-enabled fraud. In addition to automatic network labeling and blocking of unwanted and illegal calls, AT&T offers free and "PLUS" versions of its AT&T Mobile Security apps, and its AT&T Call Protect app provides even more security features. Digital Phone Call Protect is a service available for landline phones. Mr. Byrd's blog post also pointed to AT&T's ongoing work with other vice providers, such as Comcast, in testing SHAKEN/STIR caller ID verification to detect and stop calls from fraudulent or "spoofed" phone numbers. 

As industry efforts to combat robocalls and spoofing continue, and as Congress and the FCC consider next steps in addressing these important consumer protection issues, consumers should be aware of the types of tools that are currently or will soon be available to reduce robocalls and spoofed calls.

Verizon Wireless Rolls Out Call Filter to Stop Robocalls

The growing problem of robocalls is an issue that came up during the Free State Foundation's Eleventh Annual Telecom Policy Conference on March 26. 

Verizon Wireless announced on March 28 that it is making available to subscribers a free version of its Call Filter service, which offers new protections from robocalls. Available as a downloadable mobile app, Call Filter provides alerts for likely spam, reporting of unsolicited numbers, and customizable automatic blocking of robocalls. An enhanced version of the service is available for monthly purchase. 

Importantly, Verizon Wireless also announced it initial implementation of STIR/SHAKEN technology to verify that numbers displayed on Caller ID actually placed calls, combatting so-called "spoof" Caller ID info.