Robocalls, Other Consumer Protections Get 3-0 Votes, but Fine Sparks Clash

Commissioners voted 3-0 to adopt a slamming and cramming NPRM proposing to bolster protections against carriers making unauthorized changes to consumers' preferred telecom providers and inserting unauthorized charges on their phone bills. They unanimously approved a rural call completion Further NPRM proposing to require covered carriers to meet performance requirements, and either change or eliminate existing data-collection and reporting rules.

The regulators voted 3-0 on a notice of inquiry about creating a reassigned phone number database (see 1706300005) and an NOI about a call authentication framework (see 1707070055). Supporting the call authentication NOI, USTelecom said the industry-directed Robocall Strike Force has made progress through collaboration among carriers, equipment makers, standards bodies and software developers. "There’s no single solution, but the FCC’s inquiry could be an important element to finding an additional way to stop some of these illegal calls and help restore confidence in the caller ID system," it said. CTIA also voiced support.

New Mexico-based Dialing Services facilitated robocalls to mobile phones without express prior consumer consent, the agency said. The agency said it warned Dialing Services in 2013, and a follow-up investigation found its platform still was being used for such illegal robocalls. It said the fine reflects the determination its technology platform was used in 180 unlawful robocalls after being warned to stop. The company didn't comment.

Senate Commerce Committee Chairman John Thune, R-S.D., and Sen. Ed Markey, D-Mass., jointly applauded agency steps aimed at robocalls and "strongly encourage the Commission to provide consumers and businesses the much-needed relief they deserve by addressing issues associated with reassigned numbers. Not only are these calls and texts to reassigned numbers a nuisance to consumers, but they also create liabilities for calling parties trying to contact Americans anticipating calls.”

O'Rielly's Concerns

O’Rielly took the robocalls-related items as an opportunity to rail against a 2015 Telephone Consumer Protection Act (TCPA) declaratory ruling and order (see 1506180046), saying the reassigned numbers database shows “how misguided” the agency was. He hopes the U.S. Court of Appeals for the D.C. Circuit overturns the rules and installs an actual knowledge standard, which would be consistent with TCPA. He also wants the agency to undertake a proceeding to set up new rules. Pai said such a rulemaking would come only after a U.S. Court of Appeals for the D.C. Circuit decision on the appeal of the ruling and order.

O’Rielly and Commissioner Mignon Clyburn also were at odds over safe-harbor protections for robocallers. O'Rielly said safe harbor needs to be part of the incentives for establishment of and funding for such a database. Clyburn said she appreciated the reassigned numbers database NOI including questions about the downsides of safe harbor protections.

The Enforcement Bureau hadn't sufficiently shown Dialing Services' supposed violations, O'Rielly dissented. He said the agency's priority is illegal robocalling, but the proposed fine is targeting a technology platform instead of the parties using it to make the calls, likening it to suing gun manufacturers after a gun-related tragedy. He said Dialing Services' platform has legitimate uses. But Pai said Dialing Services "was not the unwitting conduit it claims to be," and the help it provided robocalling clients in structuring their prerecorded messages "is not the conduct of a merely passive actor."

Slamming, Cramming

The slamming and cramming NPRM would "prohibit carriers from misrepresenting themselves when telemarketing to consumers and placing unauthorized charges on their phone bills," said a release. Any subsequent carrier changes in a consumer's telecom provider would be invalidated, said Kimberly Wild, a staff attorney. She said the item also proposes to prohibit carriers from placing unauthorized charges on consumer bills, and to automatically freeze consumers' preferred provider choices until they ask the freeze to be lifted. It sought comment on other possible measures, she said. The NPRM appeared largely consistent with a draft (see 1706300042).

Pai said "unscrupulous carriers" marketing to consumers "often lie about their identity or misrepresent" their carrier relationship "to perpetrate these schemes," often targeting vulnerable people. "The FCC tackles this problem head-on," he said, citing proposed codification of slamming and cramming rules.

O'Rielly welcomed proposals to set requirements, rather than relying on enforcement actions based on murky standards, which he said the previous FCC did. He agreed with broadening the item's discussion on slamming and verification to include more context on the state of the market and the potential impact and costs of possible rule changes. He's particularly skeptical about "instituting a default preferred interexchange carrier freeze, which could impede competition and be burdensome and confusing for consumers." Clyburn believes the FCC has sufficient authority to address slamming and cramming case by case, but is "open to adopting rules" to "clearly articulate the standards."

Rural Calls

The rural call completion FNPRM seeks to hold phone companies more accountable for ensuring long-distance calls get through to recipients in rural America. Covered providers that hand off calls to intermediate providers "would be required to monitor the performance" of intermediaries and hold them accountable, said a release. A staff attorney said the item also seeks comment on alternative proposals on 2013 data recording, retention and reporting rules: (1) to modify the rules, (2) eliminate the rules, or (3) keep the recording and retention rules while eliminating the reporting rules. It also would seek comment on an existing "safe harbor" for covered providers and possible additional measures.

"These new rules will be more effective in directly and swiftly addressing call completion issues than our existing regulations," Pai said. Clyburn "firmly" believes existing rules helped ensure some providers "got their houses in order" and voiced skepticism about eliminating them, though she's willing to consider the performance-based proposals. O'Rielly said rural call completion improved since 2013 but backed reviewing the rules. He said he's "wary" of changing voluntary industry practices into requirements and said carriers shouldn't "be held liable for honest mistakes or circumstances beyond their control."

USTelecom looks forward to helping the agency address rural call competition, CEO Jonathan Spalter said. NTCA believes it's useful to review the rules, but the FCC must "neither relent nor permit backsliding," said CEO Shirley Bloomfield.

Meeting Notes

Clyburn chastised Pai for a lack of transparency, in response to a question about broadcast transactions during a news conference Thursday. She learned about Sinclair buying Bonten’s approval from the media, she said (see 1707050042). The filing wasn’t listed under the company name of either Sinclair or Bonten, which runs counter to Pai’s stated goal of making the FCC more open, she said. “Transparency and the ability for us to weigh in in a fair and open way should always be the objective.”

The FCC's administrative law judge shouldn't have a role overseeing transactions, and the function of the ALJ in commission proceedings should be rolled back or eliminated, O'Rielly said during the agency meeting Thursday. The comments came after commissioners voted 2-1 to reverse the ALJ finding that Cablevision discriminated against the Game Show Network (see 1707130048). "The ALJ function isn't working as intended," O'Rielly said, saying the agency and Congress should work out "an alternative procedure." Since commissioners rule on ALJ decisions anyway, he said "it's adding an unnecessary layer." He said the process of referring a takeover to the ALJ "is a cop-out" intended as an indirect means of killing the deal. Asked about the idea, Pai and Clyburn said it's too soon to form opinions.

FCC Commissioner Mignon Clyburn, whose term formally expired in June, said Thursday she will make no announcement before a Senate Commerce hearing Wednesday (see 1707120019) including FCC nominees Brendan Carr and Jessica Rosenworcel. “I don’t have any news to make,” she said. Clyburn spoke to reporters after a commissioners' meeting. Both nominees are capable, she said. “They’re known quantities.” There has been speculation on how long Clyburn would stay (see 1704140061), though in recent weeks industry officials said they now expect her to stay at least until Rosenworcel is confirmed. She can continue to serve until the end of the 115th Congress in late 2018.