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TCPA Regulatory Update — Commission Adopts New Rules for “Gateway Providers”

At its May open meeting, the Federal Communications Commission (“Commission”) adopted a Report and Order, Order on Reconsideration and Further Notice of Proposed Rulemaking (“FNPRM”), that would define and impose a number of new obligations on certain intermediate voice service providers when accepting foreign-originated call with U.S. numbers. The Report and Order is the result of an October Further Notice of Proposed Rulemaking (“October FNPRM”) in which the Commission sought comment on a number of proposals designed to address the ongoing problem of illegal robocalls originating overseas and gaining access to U.S.-based networks through “gateway providers.”

The Report and Order largely adopted the proposals outlined in the October FNPRM including defining a gateway provider as a “U.S.-based intermediate provider that receives a call directly from a foreign originating provider or foreign intermediate provider at its U.S.-based facilities before transmitting the call downstream to another U.S.-based provider.” The Report and Order also expands the Robocall Mitigation Database (“RMD”) rules by requiring gateway providers to take a number of actions:

  • submit mitigation plans describing their robocall mitigation practices and certifications stating that they are adhering to those practices to the RMD;

  • begin providing STIR/SHAKEN caller I.D. authentication to all unauthenticated, foreign-originated SIP calls with U.S. numbers in the caller I.D. field by June 30, 2023;

  • respond to all traceback requests within 24 hours;

  • block illegal traffic upon notification by the Commission or risk the Commission directing downstream providers to block all of the gateway provider’s traffic;

  • block all calls on a reasonable do-not-originate list;

  • take steps to ensure that the gateway provider’s immediate, foreign upstream providers are not using them to transmit high volumes of illegal robocalls onto their U.S. networks; and

  • take reasonable steps to mitigate robocalls on regardless of whether they have implemented STIR/SHAKEN on the IP portions of their networks.

The Commissioners praised the steps taken in the Report and Order. Commissioner Carr remarked that that he was supportive of the Report and Order because the new rules “focus[] exclusively on the IP portions of a provider’s network and [therefore] do[] not require any upgrades of network infrastructure.” Similarly, Commissioner Starks praised the Report and Order because it “takes robust steps to stop robocalls before they reach our domestic networks." He concluded that: "If [the Commission] can make it more difficult for these illegal and unwanted calls to hit our networks, we will be much closer to winning our fight.” Chairwoman Rosenworcel, noting the progress the Report and Order represents, reiterated her view that more work is still needed to truly eliminate unlawful robocalls.

Thus, despite the actions taken in the Report and Order, the Commission also proposed a number of rule changes to further prevent unlawful traffic from spreading through U.S. networks. These include:

  • requiring U.S. intermediate providers to authenticate unauthenticated SIP calls and seek comment on non-IP authentication methods;

  • an extension of the 24-hour traceback requirement to all voice service providers;

  • requiring all providers to block illegal calls when notified by the Commission;

  • a clarification of the rule that all providers take affirmative, effective measures to prevent customers from using their networks to originate illegal calls, and block all traffic from any upstream bad actor;

  • requiring all voice service providers, regardless of their implementation of STIR/SHAKEN to take reasonable steps to mitigate robocalls; and

  • a number of enhanced enforcement measures such as specific forfeitures for violations of the Commission’s robocalling rules and subjecting repeat offenders to bans from future significant association with entities regulated by the Commission.

The Commission also took action, via an Order on Reconsideration, to extend the requirement that domestic voice service providers only accept traffic from foreign originating providers that are registered and have submitted certification in the RMD to foreign intermediate providers. The Commission had not been enforcing that previously adopted requirement, so also lifted the stay of its enforcement.

Finally, in her statement on the adoption of the Report and Order, Order on Reconsideration and FNPRM, the Chairwoman once again requested additional authority from Congress. In particular, Chairwoman Rosenworcel urged Congress to pass legislation redefining “autodialer” in light of the Supreme Court’s Facebook decision, as well as legislation to provide the Commission with additional enforcement tools such as the ability to go directly to court to collect fines from robocallers. These actions, according to the Chairwoman, would allow the Commission “to fight this scourge on all fronts” and “catch those behind [the illegal] calls.”

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 151

About this Author

Russell H. Fox, Communications Attorney, Mintz Levin, Regulatory Approvals

With over 35 years in the wireless telecommunications industry, Russell is among the most experienced wireless communications attorneys in the country. Unique among his peers, Russell assists clients on federal legislative, regulatory, and transactional matters. He analyzes legislation on behalf of clients, participates in proceedings before the FCC and other federal agencies, negotiates spectrum agreements, and represents wireless providers in spectrum auctions. He is also frequently consulted on matters involving US spectrum use and policy.

Whether they are in the middle of a...

Jonathan P. Garvin Communications & Media Attorney Mintz, Levin, Cohn, Ferris, Glovsky and Popeo Washington, DC

Jon focuses his practice on a wide range of legal challenges facing companies in the communications and media industries. He regularly advises clients on transactional, regulatory, and compliance issues before the Federal Communications Commission (FCC) involving wireless, broadband, broadcast, and cable matters. In addition, Jon advises broadcast and print media clients on FTC and state-specific advertising rules and advises broadcast companies on Television Spectrum Repack and FCC license requirements. 

Jon brings FCC experience and insight to his engagements with the firm’s...