United States: FCC Robocall Strike Force Releases Its Report On Curbing Unwanted And Illegal Robocalls

On October 26, the Federal Communications Commission convened a second meeting of the Robocall Strike Force, which has been working for two months to develop solutions to the problem of illegal and unwanted robocalls. The Strike Force, led by AT&T CEO Randall Stephenson, was established at the behest of FCC Chairman Tom Wheeler, and is composed of members from 33 companies in the telecommunications industry. Its charge was to develop innovative and comprehensive solutions to detect and prevent undesired calls to consumers.

Unwanted phone calls and text messages continue to be the number one complaint to the FCC by a wide margin, and the volume of such complaints continues steadily to rise, despite the Commission's laborious efforts, through rulemakings and the issuance of declaratory rulings, to interpret the Telephone Consumer Act (TCPA), the statute giving the FCC authority over unwanted calls, in a more and more consumer-friendly fashion, and despite both a stepped-up enforcement at the FCC and a continuous deluge of private class action lawsuits.

According to the National Cable & Telecommunications Association (NCTA), 7.6 billion robocalls were made in the period July – September 2016, to 31 million cable digital voice subscribers, despite the fact that there are 222 million active registrants on the National Do Not Call list managed by the Federal Trade Commission. Following an August 19 kick-off meeting of the Strike Force, its members (and their staffs) divided into four work groups to tackle the challenge with which they had been charged. Those groups were: (1) Authentication; (2) Empowering Consumer Choice; (3)  Detection, Assessment, Traceback, and Mitigation; and (4) Regulatory Support/Root Cause Removal. These groups each met at least twice a week for two months. The Strike Force then drafted a 45-page report compiling the findings and recommendations of the four work groups.

As reported at the October 26 meeting, the Authentication group concluded that the prompt deployment of uniform standards to verify and authenticate caller identification for calls carried over an Internet Protocol (IP) network was crucial, and asked that the standards groups already focused on this issue, move up by two months (from December to the end of October) the date by which they intend to report back on their work.

The Empowering Consumer Choice group focused on ways to provide end-users with a greater degree of identification and control over the types of calls they receive. The Strike Force reported that its members intend to work toward this goal in the short term through educating consumers on the capabilities already existing in the market and, in the long term, by recommending standards for information flow, consumer presentation, and consumer-directed call disposition control options. To this end, for example, a newly posted NCTA webpage entitled "Preventing Robocalls" provides links to the websites of five of the Association's members for information on how those members are already "educating consumers about robocalls and providing specific tools to block them."

The Detection, Assessment, Traceback, and Mitigation work group identified some methods to detect and block unwanted calls and afford consumers (and others) the ability to put those numbers on a "Do Not Originate" List. The Strike Force reported that one trial it ran blocking known numbers that should never originate traffic was successfully conducted. That test related to a widespread scam, heavily covered in the press, involving spoofed calls that, on their face, appeared to be coming from the IRS.  One such call had even been placed to the chairman's home, only adding to the media coverage.

During the test, the IRS, which apparently never makes outbound calls identified as coming from the Agency, had no problem blocking all such calls. How this would operate, though, in the case of a business that was the victim of spoofing but that still needed to maintain the ability to use its name to place legitimate calls (probably the case in the preponderance of instances involving the private sector), is unclear. The Strike Force Report stated that carriers' customers could request that additional widely spoofed official government numbers could be added to the Do Not Originate list. However, the exact parameters of that list and how it would work on a broader scale are not yet clear. The Regulatory Support/Root Cause Removal work group, according to the Strike Force Report, focused on ways to facilitate collaboration between government and industry, making recommendations on removing regulatory roadblocks and on how the FCC could support industry efforts. In this regard, one of the roadblocks that derails so many of Washington's best-laid plans was alluded to in passing during the summary of the Report at the meeting, and singled out later for special comment in the chairman's remarks. Specifically, the Report calls for cost recovery for the industry's efforts and, while the chairman later stated that the FCC will be searching for ways to help, he also emphasized that industry should start looking at the implementation of the suggestions in the Report as a "cost of doing business."

After a summary of the Strike Force Report was presented by Mr. Stephenson and others, it was the FCC Commissioners' turn to speak. All the Commissioners made clear in their remarks that they were disappointed in the slow pace of the Task Force's progress in developing concrete solutions ready for implementation.

FCC Chairman Tom Wheeler compared, one by one, the FCC's calls with industry action to the Strike Force's initial deliverables, making clear all that still remained to be done. Upcoming "to-dos" on the chairman's list include giving consumers access to free call blocking and filtering, deploying VoIP caller ID authentication, and expanding the Do Not Originate trial to include additional providers and numbers. Chairman Wheeler emphasized that the industry must ensure continued progress in achieving concrete deliverables, meeting deadlines, and regularly updating the Commission and the public.

At one point, Chairman Wheeler said that while he agrees with the Report's conclusions and suggestions, he disagreed with the term "Hand-off Plan," as used in the Report. "This is not going to be an out of sight out of mind; people in the room have a continuing responsibility," he admonished.  The chairman then reported that he and Mr. Stephenson had agreed to call the group back together in six months.  "Your work has just started," he concluded.

That said, everyone knows that, in all likelihood, Chairman Wheeler will be long gone from the Agency when six months have passed. In the interim, though, the Strike Force is likely to keep plugging away

This article is presented for informational purposes only and is not intended to constitute legal advice.

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