February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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TCPA Regulatory Update — FCC Reviews Comments on STIR/SHAKEN Implementation; Other Call Blocking Issues

The FCC continues to take steps to implement portions of the TRACED Act and extend protection against illegal and unwanted robocalls.

FCC Evaluates Next Steps on STIR/SHAKEN Mandate

As we reported in the March TCPA Digest, the FCC released a Report and Order and Further Notice of Proposed Rulemaking (“FNPRM”) mandating adoption of the STIR/SHAKEN authentication framework for originating and terminating voice service providers and proposing additional measures to combat illegal spoofing. The comment cycle on the FNPRM closed in late May. The proceeding generated a lot of interest from a diverse group of stakeholders, including large and small voice service providers, voice over Internet Protocol (“VoIP”) providers, technology and analytics companies, and calling party interests. In the FNPRM, the FCC proposed extending the requirement to implement STIR/SHAKEN to intermediate providers. Although most commenters agreed that it should, they disagreed on whether that requirement should be limited to passing along unaltered the identifying information that intermediate providers receive from the network that originated the call, or adding their own identifying information in the form of an Identity header if they receive a call that lacks it. This decision will have broad implications for how the STIR/SHAKEN ecosystem evolves and what information will be available to analytics engines to help inform their blocking and labeling decisions. Commenters also discussed how the FCC can help facilitate the IP transition – which is necessary for all providers to be able to sign their calls with STIR/SHAKEN authentication information, and for that information to ultimately reach consumers and inform call labeling and blocking decisions. Commenters also discussed incorporating international calls into the caller ID authentication framework and whether an extension would be required for small and rural voice service providers that are facing challenges acquiring IP interconnection and cost-effective vendor solutions to implement STIR/SHAKEN.

Petition Seeks Clarification that Caller May Rely on Obtained Valid Consent

The Consumer and Governmental Affairs Bureau released a Public Notice seeking comment on the Petition for Expedited Declaratory Ruling Filed by Assurance IQ, LLC. Assurance provides an online portal where consumers may read information about various types of insurance and purchase such insurance online or through a phone call with an independent licensed insurance agent. If they wish to receive a quote, consumers must accept a TCPA-compliant disclosure. Each call that is connected to a customer begins with a several second automated introduction before a live agent begins speaking with the customer. Based on this practice, the Petition seeks a declaratory ruling (1) confirming that where “a calling party has sufficient information to establish a ‘reasonable basis to believe that they have valid consent to make the call’ the caller may rely on that consent for TCPA purposes until the caller is informed otherwise;” and (2) that “the playing of a brief, prerecorded introductory message on an otherwise live call does not convert the entire call into a prerecorded or artificial call within the scope of the TCPA.” Comments and replies on the Petition are due June 22 and July 6 respectively.

Traceback Consortium Registration

Letters of Intent to become the single designated traceback consortium, as required by the TRACED Act, were due in late May, and comments on those letters were due in June. USTelecom’s Industry Traceback Group (“ITG”) was the only entity to file a Letter of Intent. The ITG has provided industry-wide traceback coordination in some form since 2015, long before the passage of the TRACED Act, and currently works with 39 voice service provider members to trace malicious calls back to the networks on which they originated. Thus, it is unsurprising that the ITG emerged as the uncontested candidate for the official designation. Commenters generally supported selection of the ITG but some suggested additional mechanisms to ensure the ITG’s neutrality or changes to its policies.

COVID-19 Exception for Financial Institutions

The comment cycle closed in late May on the Petition for Expedited Declaratory Ruling, Clarification or Waiver filed by the American Bankers Association and numerous other financial associations seeking to extend the TCPA’s emergency purposes exception to COVID-19-related calls and texts from financial institutions. Despite calls in the record to expedite a decision on the petition due to the time-sensitive nature of COVID-19, including a letter from the Consumer Financial Protection Bureau itself, the FCC still has not ruled.

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 170

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...

Elana Safner Cybersecurity Attorney Mintz

Elana advises clients on public policy, regulatory issues, and disputes affecting the TechComm sector, as well as privacy and cybersecurity matters. She also has experience with Federal Communications Commission (FCC) procedures and rulemakings.

She has a Certified Information Privacy Professional (CIPP) (US Specialization) certification from the International Association of Privacy Professionals.

Prior to joining Mintz, Elana worked as an associate in the DC office of an international law firm, where she advocated on behalf of her clients spanning a wide variety of...