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Client Advisory: President Signs New TRACED Act into Law & FCC Seeks Answers to Questions about Blocking Robocalls

6 Jan, 2020

There are two recent actions of particular significance that address the scourge of robocalls/Caller ID spoofing. Congress has passed legislation to address robocalling that was signed by the President. Also, the FCC has requested public comments on robocall blocking and spoofing. The TRACED Act President Trump signed the bi-partisan TRACED Act into law on December 31, 2019. That legislation extends the FCC’s regulatory reach against robocalls. Among its several provisions, the TRACED Act directs the FCC by no later than July 2021 to require all providers of voice service to: 1) “implement the STIR/SHAKEN authentication framework” in all IP networks; and 2) to “take reasonable measures to implement an effective call authentication framework” in all non-IP networks. There are no exceptions for small service providers but, upon a demonstration of hardship, small providers can get an extension of time for compliance. The Act provides a “safe harbor” exception for those voice service providers that, by January 2021, have taken specific actions to prevent robocalls. For those providers operating IP networks, the FCC must determine that a provider has:

“adopted the STIR/SHAKEN authentication framework”;
“agreed voluntarily to participate with other providers of voice service in the STIR/SHAKEN authentication framework”;
begun to implement SHAKEN/STIR; and
be capable of full implementation by July 2021.

For the Safe Harbor to apply to an operator of a non-IP network, the Commission must determine that such company has taken “reasonable measures to implement an effective call authentication framework” and is fully capable of “implementing an effective call authentication framework” by July 2021. Once again, there are no exceptions for small companies. The TRACED Act includes other significant measures including:

Eliminating the requirement that the FCC send an alleged rule violator a “warning” citation before imposing a civil fine
Raising the maximum fine per violation to $10,000
Increasing the statute of limitations for intentional violations to four years
Setting mandate for existing FCC call-blocking rulemaking dockets that include deadlines and investigations into related issues such as unwanted autodialed calls and texts
Extending FCC authority for calls originated overseas, including “one-ring” calls that attempt to motivate call-back schemes to expensive foreign locations
Prohibiting service providers from charging consumers for call-blocking
Creating an inter-agency taskforce led by the Attorney General to consider prosecution of offenders

FCC Public Notice Seeking Comment on Robocall Blocking The FCC’s public notice seeking answers to various questions on blocking robocalls was published in the Federal Register on December 30, 2019. Comments are due on or before January 29, 2020, and reply comments are due on or before February 28, 2020. Besides guiding the Agency’s work preventing unwanted calls, the solicited information will help form the FCC’s first staff report on call-blocking efforts. The FCC seeks comments on the following issues:

Availability of Call-Blocking Tools,
Effectiveness of Call-Blocking Tools,
Impact of FCC Actions,
Impact of FCC Actions on Consumers and Unwanted Calls, and
Impact on 911 Services and Public Safety

While this public notice is more directed at larger companies, smaller CLECs and Over-the-Top (“OTT”) VoIP providers may, nevertheless, wish to consider reviewing the questions internally to evaluate this ability to implement call-blocking measures. Discussion Clearly, every voice service provider, including both IP- and TDM-based operators, must take the anti-robocall/spoofing movement seriously. They must participate in efforts to implement SHAKEN/STIR and other anti-robocalling measures within their networks or face possible sanctions. As noted above, there is no per se exception for small operators. However, I do expect that the FCC will ultimately grant smaller operators an extension of time to implement anti-robocalling measures. But the Commission will need data to justify extensions. Moreover, I expect the FCC to condition compliance date extensions on the recipients having taken some interim steps toward compliance. A small voice provider that ignores robocalling prevention may find itself facing a hostile Enforcement Bureau and forfeitures. Smaller companies may wish to consider working with similar companies and trade associations to present the FCC with information sufficient to justify compliance deadline extensions. They may also wish to consider appointing an officer or other trusted employee to be in charge of anti-robocalling matters. Allowing the issue to slip through the crack can be dangerous. Similarly, it would be worth some evaluation to develop methods of reviewing traffic from any upstream providers, if applicable, or even end user customers with higher-than-expected outbound calling volumes to determine whether they may be engaged in, or supporting of, robocalling or Caller ID spoofing. It is not too difficult to foresee the FCC concluding that it is an unjust and unreasonable practice for a voice service provider to “close its eyes” to evidence of robocalls or Caller ID spoofing in its network. Similarly, vendors of autodialing services, with or without the ability to change (spoof) Caller ID information, should also be more prudent with their operations. The FCC has already fined an operator of an autodialing platform ( Dialing Services, LLC Forfeiture Order) $ 2.8 million for making illegal calls. With appropriate facts and angry consumers, one should expect more enforcement against platform operators. If you have any questions about the TRACED Act or FCC’s Public Notice or would like to discuss regulatory and legal strategies in response to these developments, please contact Robert H. Jackson at rhj@commlawgroup.com or 703-714-1316. Jackson is Of Counsel at Marashlian & Donahue, PLLC and brings with him a wealth of knowledge and experience across a broad spectrum of communications and technology issues. He is an attorney, government relations professional, and former telecom company executive with broad experience addressing the legal and regulatory aspects of financial, technical and marketing issues associated with the telecommunications, Internet and video distribution industries. Jackson has advised and defended clients on the FCC’s Telephone Consumer Protection Act (“TCPA”) and FTC’s Telephone Sales Rule (“TSR”) and CAN-SPAM Act for years.

Client Advisory: President Signs New TRACED Act into Law & FCC Seeks Answers to Questions about Blocking Robocalls

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