The Federal Communications Commission (FCC) marked another step in its effort to curtail illegal robocalls. During its recent Open Meeting, the FCC approved Notices of Inquiry (NOIs) into Call Authentication methods and into Advanced Methods to Target Unlawful Robocalls that, respectively, seek input on efforts to institute a caller ID-based “Trust Anchor,” and to develop a re-assigned numbers database. Opening comments to the NOIs are due on August, 14, 2017 and August 28, 2017, respectively, with each having a 30-day deadline for replies. In addition to issuing the NOIs, the FCC also approved a forfeiture order against Dialing Services, LLC, marking the first time that the FCC has imposed liability against a telemarketing platform rather than a calling entity.
The Call Authentication Trust Anchor NOI asks how the FCC might institute, or encourage industry to institute, a digital signature system for phone calls in order to ensure accuracy and prevent spoofing (a practice whereby a caller makes a phone call appear to originate from a different, usually more trusted, number). The NOI considers high-level questions about such a system, including whether the FCC should mandate its use among telephone carriers, what rules should be put in place to make it effective, and how phone numbers could be enrolled. Additionally, it asks questions about secondary effects, including the impact on legacy systems, how such a system could be integrated into the international telephone network, and what privacy and data security considerations should be taken into account. Finally, the NOI asks how the FCC should measure the costs and benefits of such a system (and how it could be paid for).
The Reassigned Numbers NOI envisions a database that would allow callers to know whether a phone number for which they have gotten consent to place calls has been reassigned to a new (non-consenting) user. Generally, telemarketers have no way of knowing when such an individual who has asked to receive telemarketing, autodialed, and/or prerecorded calls abandons his or her phone number, which may then be transferred to another customer who has not given consent to be called. As a result, the telemarketer may inadvertently call the same number but reach a customer who does not wish to receive the call, potentially putting the caller at risk of liability under consent-based autodialing/prerecorded-messaging and/or do-not-call rules. The FCC claims that both consumer groups and telemarketers support a reassigned number database, but acknowledges that many questions about such a database, including its basic structure and administration, remain unanswered. The NOI seeks input on four potential approaches for this database:
- An FCC-run database;
- A system in which telephone carriers provide information about reassigned numbers directly to callers;
- A system in which carriers would offer callers an ability to query the carriers’ databases; or
- A mandate that carriers publish information about reassigned numbers publicly.
Other basic questions in the NOI include what information about a number should be reported, whether participation in the database should be required for wireline, wireless, and VoIP services, and how to integrate carriers that do not obtain numbers directly from the North American Numbering Plan Administrator. As with the first NOI, the FCC also seeks comments about financial and operational aspects of such a database, and potential impacts on privacy and data security. As Commissioners Clyburn and O’Rielly noted in separate statements to the NOI, new language was added to the draft NOI asking whether there should be a safe harbor for companies that use the reassigned numbers database.
In a somewhat atypical move, the FCC commissioners considered and voted on both NOIs together. Both were approved unanimously, although Commissioner O’Rielly expressed reservations about potential overbreadth of the FCC’s approach, noting that not all robocalls are illegal, as well as concerns about the effectiveness of the proposals, as many illegal robocalls originate outside the U.S. and, therefore, generally outside the FCC’s jurisdiction. He also warned against imposing a technology mandate, particularly one that could interfere with the existing protocols that authenticate data packets.
Alongside adoption of the NOIs, the FCC also approved, by a vote of 2-1, a $2.88 million forfeiture order against Dialing Services LLC (a company that provides a platform to facilitate automated telephone outreach by its users). The FCC’s Enforcement Bureau had been investigating Dialing Services since 2012, when it found its platform had been used to place 4.7 million calls to wireless numbers over three months. In 2013, the Bureau issued Dialing Services a citation directing it to cease its practice, after which the Bureau alleges Dialing Services made 180 additional illegal (and 4 legal) calls. This forfeiture is the end result. While Chairman Pai and Commissioner Clyburn approved the forfeiture order, Commissioner O’Reilly strenuously dissented, noting that, in his view, the order punishes the technology provider rather than the actual originators of the calls, and that the standard introduced in the order could impose liability on platforms that offer services only to legitimate, legal campaigns. The text of the Forfeiture Order has yet to be released.