TCPA Regulatory Update — FCC Partners with More States, Sends More Cease & Desist Letters, Clarifies Safe Harbors, and Responds to Congressional Queries
As we reported last month, the Federal Communications Commission has been partnering with various states to improve the federal-state collaboration in robocalling investigations. In April, the Commission’s Enforcement Bureau signed memoranda of understanding with Alaska, California, Tennessee, Pennsylvania, and the state of Washington. With the addition of these states, a majority of U.S. states have now joined with the Commission in robocalling investigation partnerships. In announcing these new partnerships, Chairwoman Rosenworcel remarked that “[the new partnerships] show that we are united when it comes to fighting robocalls—urban, rural, north, south, east, and west.” The Chairwoman also took the opportunity to invite the remaining states that have not yet established a partnership to do so, saying “I invite every state and U.S. territory to join this effort and establish information sharing and cooperation structures with the FCC so we can work together to investigate and put an end to spoofing and robocall scam campaigns.” These partnerships help states fight illegal robocalling by providing the Commission’s robocalling enforcement expertise and resources to support state investigations, while helping the Commission avoid duplicating investigatory efforts when states are already pursuing an illegal robocaller.
The FCC’s Enforcement Bureau sent cease-and-desist letters to Airespring, Inc., Hello Hello Miami, LLC, and thinQ Technologies, Inc. (collectively “the Companies”), which the Bureau found were facilitating unlawful robocall traffic on their networks. The letters warned the Companies that they were allegedly transmitting illegal robocalls and if they did not investigate and take steps to “effectively mitigate illegal traffic” within 48 hours, then all other voice service providers would be permitted to block traffic from the Companies. Further, the letters required the Companies to inform the Commission and the USTelecom-led Industry Traceback Consortium of the steps they would take to “implement effective measures” to prevent customers from using their networks to transmit illegal calls in the future. The Companies were required to respond to the letters by April 5, 2022, with failure to timely notify the Enforcement Bureau of the steps the Companies took to stop the illegal traffic being treated as the equivalent of failing to put effective measures in place at all. The Enforcement Bureau has taken no further action against the Companies as of the date of this publication. This suggests that, as with the companies that received previous letters, these Companies complied with the Bureau’s directives
The Enforcement Bureau’s investigations once again relied on information collected by the Industry Traceback Consortium. However, notably in the case of thinQ Technologies, Inc., the North Carolina Department of Justice conducted its own investigation and identified thinQ as the source of illegal robocall traffic. North Carolina shared the findings of its investigation with the Enforcement Bureau, which bolstered the Bureau’s investigation into thinQ. The Bureau was able to cash in on this state-federal partnership only one month after North Carolina entered into its information sharing agreement with the Commission to help combat illegal robocalling.
With these letters, the Commission has now sent nearly 20 cease-and-desist letters to companies suspected of permitting unlawful traffic on their networks.
The Commission’s Consumer and Governmental Affairs Bureau released a Public Notice clarifying that callers may still be eligible for a safe harbor from liability under the Telephone Consumer Protection Act (“TCPA”) when an authorized third-party agent searches the Reassigned Numbers Database (“RND”) before making calls on behalf of the caller. As we previously explained, the RND allows callers to determine whether a telephone number has been reassigned from a consumer that has given prior express consent to calls or text message to a new customer that has not. Using the database is an important step in both reducing the number of overall spam calls but also for protecting good-faith callers from TCPA liability where the RND returns incorrect information about a number. While the 2018 RND Order established that callers who query the RND and receive incorrect information from the database have a safe harbor from TCPA liability for those calls, neither the Order nor the Commission’s rules were clear that a caller may still be eligible for safe harbor when an authorized agent makes the query. The Commission also clarified that callers seeking to take advantage of the safe harbor while using an authorized agent to perform the query have the burden of proof to show that the agent searched the most recent version of the RND and that it returned the incorrect information. The caller must also be prepared to prove that it authorized the agent to act on its behalf.
In addition to guidance regarding authorized agents, the Consumer and Governmental Affairs Bureau released a Public Notice modifying the pricing scheme from the RND to make it more affordable for callers to use as a resource. The new pricing structure seeks to give users more subscription options while lowering prices for most users. The Commission also added discounts for callers’ agents that subscribe to the highest use subscription tiers. The new structure provides the biggest reductions in price for the highest subscription packages by reducing the cost per query for the largest subscription packages.
In October, Representative Vern Buchanan (FL-16) sent a letter to then Acting Chairwoman Rosenworcel seeking information about the Commission’s efforts to combat scam calls and protect vulnerable consumers. In his letter he asked how the Commission intends to force non-compliant telecommunications industry members into compliance. In March, Chairwoman Rosenworcel responded to Rep. Buchanan’s letter. Front and center in the response were the actions taken by the Commission’s Enforcement Bureau in the past year, which includes a $45 million dollar fine against a large robocalling operation — the largest ever under the TCPA — proposed just this past February as well as a number of cease-and-desist letters the Enforcement Bureau has sent to companies it found were facilitating illegal robocalling. Chairwoman Rosenworcel also highlighted the work of the Consumer and Governmental Affairs Bureau to educate consumers about common robocalling scams and the tools they need to identify and avoid falling for them.
The Chairwoman also noted that the Commission has fulfilled its statutory duties under the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act — most prominently, requiring providers to implement STIR/SHAKEN or develop and employ their own robocall mitigation plan. In noting these requirements the Chairwoman explained that as a result of the Commission’s robocall mitigation efforts, including mandating the use of STIR/SHAKEN, there were significantly fewer unlawful robocalls in January 2022 than in the months before the STIR/SHAKEN mandate became effective.
Finally, Chairwoman Rosenworcel reiterated that she has proposed a number of additional measures that are currently pending before the Commission. One recent example the Chair pointed to was, as we’ve previously reported, a proposal to require that a caller obtain consent before delivering a “ringless voicemail.” The Commission has thus far not acted on this proposal.
The Chairwoman concluded by pointing out areas where the Commission’s authority is too limited and suggesting that Congress give the agency the authority it needs to catch bad actors. Specifically, the Chairwoman pointed to the Supreme Court’s decision in Facebook v. Duguid, which narrowed the definition of an “auto-dialer.” In addition, the Chairwoman urged Congress to give the Commission the power to seize unlawful robocallers’ assets and go to court directly to collect fees from those bad actors.