Among the topics Steve will discuss is the FCC’s recent FNPRM proposing to require gateway providers to assist in the battle against illegal robocalls by applying STIR/SHAKEN caller ID authentication and other robocall mitigation techniques to calls that originate abroad from U.S. telephone numbers. The FNPRM, adopted at the FCC’s September 30 Open Meeting, seeks comment on several other proposals aimed at mitigating robocalls, including the following requirements that would be applicable to gateway providers: (1) responding to traceback requests within 24 hours; (2) blocking calls upon notification from the Enforcement Bureau that a certain traffic pattern involves illegal robocalling; (3) utilizing reasonable analytics to block calls that are highly likely to be illegal; (4) blocking calls originating from numbers on a do-not-originate list; (5) confirming that a foreign call originator using a U.S. telephone number is authorized to use that number; (6) including robocall mitigation obligations in contracts with foreign customers; and (7) submitting a certification regarding robocall mitigation practices to the Robocall Mitigation Database. In addition, the FNPRM seeks comment on a requirement that service providers block calls from gateway providers identified as bad actors by the FCC and on whether additional information should be collected by the Robocall Mitigation Database. The FNPRM asks whether there are alternative means to stop illegal foreign-originated robocalls. Finally, while the rulemaking proceeding is pending, the FCC declared that it would not enforce the prohibition in Section 63.6305(c) of the FCC’s rules on U.S.-based providers accepting traffic carrying U.S. NANP numbers that is received directly from a foreign voice service provider that is not in the Robocall Mitigation Database.

In case you missed it:

Guidance for Implementing the STIR-SHAKEN Call Authentication and Robocall Mitigation Mandates in 2021 (December 2020)

The FCC’s Packed September Meeting Agenda Includes Focus on IoT Spectrum and Robocall Prevention (September 2021)

You will find more information about the items on the September meeting agenda after the break:

Promoting More Resilient Networks - The NPRM would seek comment on various issues related to improving the reliability and resiliency of communications networks during emergencies and natural disasters. The NPRM focuses on whether the Framework (a wireless industry agreement aimed at providing mutual aid during emergencies, ensuring municipal and consumer readiness and communicating about service restoration) can be improved, such as by expanding participation, increasing the scope of participants’ obligations or codifying industry disaster-based coordination obligations. The NPRM would also seek comment on enhancing information provided to the FCC during disasters and network outages through the Network Outage Reporting System and the Disaster Information Reporting System. In addition, the NPRM would ask about communications resilience strategies to mitigate the impact of power outages, including coordination between communications providers and power companies and the use of backup power during disasters.

Reassessing 4.9 GHz Band for Public Safety – The Order on Reconsideration would grant requests by public safety organizations to vacate a 2020 order that permits states to lease spectrum in the 4.9 GHz band (designated for public safety use) to third parties for non-public-safety use. The Order on Reconsideration would also lift a freeze on 4.9 MHz licenses to allow incumbent licensees to modify licenses or seek new permanent fixed sites. The FNPRM would propose to establish a nationwide framework for the 4.9 GHz band to maximize public safety while promoting interoperable communications and interference protection throughout the network. Areas for comment would include how to protect public safety users from harmful interference, the use of the Universal Licensing System or another database to maintain relevant technical data, adoption of consistent technical standards to foster interoperability of equipment using the band and giving public safety uses priority. The NPRM would also seek comment on how to manage the band, incentivize public safety licensees to use the latest commercially available technologies and allow non-public safety use of the band without jeopardizing public safety operations.

Authorizing 6 GHz Band Automated Frequency Coordination Systems - The Public Notice would set forth a process for the OET to authorize AFC systems, which are required to operate standard-power devices in the 6 GHz band. Specifically, unlicensed standard power devices that operate in the 6 GHz band are required to check an AFC system prior to operating to avoid harmful interference to incumbent operations. The Public Notice would explain the approval process for AFC system operators, which would include conditional approval, a public trial period and an opportunity for public comment. The Public Notice would provide detailed information about the content of AFC system proposals and request that such proposals be submitted no later than November 30, 2021 (although proposals will be accepted after that date).

Spectrum Requirements for the Internet of Things - The NOI (which is required to be issued by The William M. (Mac) Thornberry National Defense Authorization Act for FY 2021 (Pub. L. No. 116-28) (the “Act”)) would seek comment on whether there is sufficient spectrum available for current and future IoT needs. As directed by the Act, the LOI would ask for comment on how to ensure that adequate spectrum is available for the increased demand for the IoT, whether regulatory barriers would prevent accessing any additional needed spectrum and the roles of licensed and unlicensed spectrum for supporting the IoT.

Shielding 911 Call Centers from Robocalls – The FNPRM would propose to update the FCC’s rules governing the PSAP Do-Not-Call registry. Although the FCC adopted rules in 2012 to establish the registry as a means to protect PSAPs from unwanted robocalls, the registry has not been fully implemented due to security concerns associated with releasing PSAP telephone numbers to entities accessing the registry. The FNPRM would propose that voice service providers block autodialed calls to PSAP telephone numbers on the PSAP Do-Not-Call registry, as an alternative to allowing entities claiming to use autodialers to access the registry to identify telephone numbers that may not be called. In addition, the FNPRM would seek comment on whether autodialed calls and text messages continue to disrupt PSAPs’ operations, security risks associated with maintaining a centralized registry of PSAP telephone numbers, ways to address security issues (such as enhanced caller vetting and data security requirements) and alternative means to prevent robocalls to PSAPs (such as by utilizing other technological solutions or leveraging the National Do-Not-Call registry).

Stopping Illegal Robocalls From Entering American Phone Networks - The FNPRM would propose to require gateway providers to assist in the battle against illegal robocalls by applying STIR/SHAKEN caller ID authentication and other robocall mitigation techniques to calls that originate abroad from U.S. telephone numbers. The FNPRM would also seek comment on several other proposals aimed at mitigating robocalls, including the following requirements that would be applicable to gateway providers: (1) responding to traceback requests within 24 hours; (2) blocking calls upon notification from the Enforcement Bureau that a certain traffic pattern involves illegal robocalling; (3) utilizing reasonable analytics to block calls that are highly likely to be illegal; (4) blocking calls originating from numbers on a do-not-originate list; (5) confirming that a foreign call originator using a U.S. telephone number is authorized to use that number; (6) including robocall mitigation obligations in contracts with foreign customers; and (7) submitting a certification regarding robocall mitigation practices to the Robocall Mitigation Database. In addition, the FNPRM would seek comment on a requirement that service providers block calls from gateway providers identified as bad actors by the FCC and on whether additional information should be collected by the Robocall Mitigation Database. The FNPRM would ask whether there are alternative means to stop illegal foreign-originated robocalls. Finally, while the rulemaking proceeding is pending, the FCC would not enforce the prohibition in Section 63.6305(c) of the FCC’s rules on U.S.-based providers accepting traffic carrying U.S. NANP numbers that is received directly from foreign voice service providers that are not in the Robocall Mitigation Database.

Supporting Broadband for Tribal Libraries Through E-Rate - Pursuant to Section 254(h)(4) of the Communications Act of 1934, as amended, a library may not receive preferential treatment or rates (such as under the E-rate program) unless it is eligible for assistance from a State library administrative agency under the Library Services and Technology Act (“LSTA”). In 2018, the LSTA was amended to specifically include Tribal libraries as eligible for assistance from a State library administrative agency. The NPRM would propose to amend Sections 54.500 and 54.501(b)(1) of the FCC’s rules to clarify that Tribal libraries are eligible for E-rate support. The NPRM would also seek comment on other measures to enable Tribal schools and libraries to gain access to the E-rate program and ways to increase participation in the E-rate program.

Strengthening Security Review of Companies with Foreign Ownership - The Second Report and Order would adopt standardized national security and law enforcement questions (“Standard Questions”) to be answered by applicants with reportable foreign ownership as part of the Executive Branch review of certain applications filed with the FCC. The issuance of Standard Questions is the FCC’s final step in implementing several reforms to formalize and streamline the FCC and Executive Branch review process consistent with Executive Order No. 13913 (April 20, 2020), which established a Committee for the Assessment of Foreign Participation in the United State Telecommunications Sector (“Committee” (formerly known as Team Telecom)) and set forth procedures and timelines for the Committee to complete its review. The Second Report and Order would include Standard Questions for the following types of applications when reportable foreign ownership (generally a 5 percent or greater equity and/or voting interest (indirect or direct) in the applicant) is present: (1) applications for a new or modified International Section 214 authorization or submarine cable landing license; (2) applications for assignment or transfer of control of an International Section 214 authorization or a submarine cable landing license; and (3) petitions for a declaratory ruling to permit foreign ownership in a broadcast licensee, common carrier wireless licensee or common carrier earth station licensee that exceeds the benchmarks in Section 310(b) of the Communications Act. There would also be a supplement to each set of questions to provide personally identifiable information for individuals with a reportable ownership interest, non-U.S. individuals with access to the applicant’s facilities, corporate officers and directors, and a law enforcement point of contact.

You will find more details about these items on the May meeting agenda after the break.

Reducing Interstate Rates and Charges for Incarcerated People – The Third Report and Order, Order on Reconsideration, and Fifth FNPRM all have different purposes related to reducing the telephone service rates for inmate phone calls. The Third Report and Order would lower the interstate interim rate caps to $0.12 per minute for prisons and $0.14 per minute for jails with populations of 1,000 or more. It would permit an additional allowance of $0.02 for negotiated site commission payments, and eliminate the separate interstate collect calling rate cap. The Report and Order would cap international calling rates, change ancillary service charge rules for third-party financial transaction fees, and adopt a new mandatory data collection to gather data and set permanent rates. The Report and Order would also reaffirm providers’ obligations regarding access for incarcerated people with disabilities. The Order on Reconsideration would reaffirm the FCC’s findings in the 2020 Inmate Calling Services Order that the jurisdictional nature of a telephone call for purposes of charging consumers depends on the physical location of the originating and terminating endpoints of the call. The FNPRM seeks comment on the provision of communications services to incarcerated individuals with disabilities, permanent interstate and international rate caps, and reforms to site commission payments and rules regarding ancillary service charges.

Strengthening Support for Video Relay Service – The NPRM suggests a continued use of a tiered rate structure for the next VRS compensation plan. It also seeks comment on whether to adjust tiered rate levels, bring average provider compensation closer to allowable costs, or defer rate changes for two years while waiting for a resolution of uncertainty about post-pandemic changes in VRS costs and demands. The Order would extend current VRS compensation rates through December 31, 2021, or the effective date of compensation rates adopted by the NPRM, whichever is earlier.

Shortening STIR/SHAKEN Extension for Small Providers Likely to Originate Robocalls – The Third FNPRM proposes to shorten the extension for small voice service providers that are most likely to originate illegal robocalls. These small providers would have to implement STIR/SHAKEN in the IP portions of their networks by June 30, 2022—shortening the extension by one year. The FNPRM seeks comment regarding the best methods to identify and define the small voice service providers that are at a heightened risk or originating an especially large amount of illegal robocall traffic. It proposes three measures to identify such providers that would be subject to a shortened implementation deadline:

• small voice service providers that originate more than 500 calls per day for any single line in the normal course of business;
• small voice service providers that receive more than half their revenue from customers purchasing services that are not mass market services; or
• small voice service providers that offer certain service features to customers commonly used for unlawful robocalls, such as the ability to display any number in the called party’s caller ID, or to upload and broadcast a prerecorded message.

Section 214 Petition for Partial Reconsideration for Mixed USF Support Companies – The Order on Reconsideration addresses a request related to a transaction involving a Section 214 transfer of control. The Order would grant the petition and exclude the petitioner from the mixed support condition because the cost shifting harm that the mixed support condition was designated to address is not present in the current case. The Order would also reaffirm the FCC’s delegation of authority to the Wireline Competition Bureau to continue applying the mixed merger condition where it is deemed necessary to remedy a potential public interest harm.

Wu’s history as a law professor and advocate may offer some clues about how he will approach his duties. He rose to prominence as an advocate of “net neutrality,” a phrase he coined in 2002. In general, his scholarship focuses on telecommunications, technology, and competition.

After the 2020 presidential election, Wu and several former federal antitrust officials authored a Washington Center for Equitable Growth (WCEG) report entitled “Restoring Competition in the United States: A Vision for Antitrust Enforcement for the Next Administration and Congress.” The report that concludes the “U.S. economy is plagued by a problem of excessive market power” and “antitrust enforcement has failed to prevent this problem.” Among the report’s recommendations is a suggestion to create a White House Office of Competition Policy within the NEC, to bring a “‘whole government’ approach to competition policy.”

Although the White House has not created such an office, Wu’s title and administrative home in the NEC closely track WCEG’s advice. In the view of Wu and his co-authors, the White House should “pressure agencies to open up closed markets while discouraging agencies from entrenching the industries that they regulate.” Agencies that the WCEG report lists as possessing competition-related rulemaking authority range from the FDA to the Federal Housing Finance Agency.

Wu’s record and the current political environment, however, suggest that the internet and communications industries are likely to be a core part of his focus. The Department of Justice, FTC, and FCC will be central to any ramp-up in competition regulation or enforcement in this arena. These agencies have over time played complementary, but sometimes competing, roles in internet and communications issues, particularly in large communications and media mergers. With the shifting jurisdictional classification of broadband internet services at the FCC, moreover, the dividing line between FCC and FTC jurisdiction over various players in the market has been unclear. Both the FCC and FTC, for example, jointly took an aggressive stance against VoIP gateways through which unlawful robocalls were being transmitted.

These agencies present challenges to an assertive White House coordinating role. The FCC and FTC are independent; the selection of agency chairs and nominations to fill vacancies could indicate how willing the agencies will be to coordinate with the White House. At the same time, the Justice Department’s independence was a prominent issue in Merrick Garland’s confirmation hearings and could affect how the White House attempts to shape the Department’s competition policy agenda.

Wu will also have competition of his own within the White House. For instance, OMB’s Office of Information and Regulatory Affairs has a direct role in reviewing proposed federal regulations and may be more reluctant to issue aggressive regulations. Other White House components, from the Office of Science and Technology Policy to the Domestic Policy Council, are likely to make their voices heard, too.

We will closely monitor developments as Wu’s role and the leadership picture in key agencies become clearer.

The December meeting may be the first attended by recently-confirmed Republican FCC Commissioner Nathan Simington, who will replace outgoing Commissioner Michael O’Rielly after today’s confirmation vote in the U.S. Senate. In addition, Chairman Pai recently announced that he intends to leave the FCC on Inauguration Day, January 20, 2021. As a result, the January 2021 FCC open meeting will be his last meeting before the change in administration.

You will find more details about the most significant items on the December meeting agenda after the break.

Securing the Communications Supply Chain – The draft Report and Order would require ETCs receiving Universal Service Fund support to remove and replace covered equipment and services posing a national security risk from their networks. It would also establish a reimbursement program to subsidize smaller carriers to remove and replace covered equipment, specifically those providers with two million or fewer customers, once Congress appropriates the estimated $1.6 billion needed to reimburse eligible providers for such costs. The draft Order would establish the procedures and criteria for publishing a list of covered communications equipment or services, and would adopt a reporting requirement for all providers of advanced communications services to annually report on covered equipment and services in their networks.

Modernizing Equipment Marketing and Importation Rules – The draft NPRM would propose updates to the Commission’s marketing and importation rules under its equipment authorization program. The proposed rules would permit, prior to equipment authorization, conditional sales of radiofrequency devices to consumers under certain circumstances. The NPRM also would propose to allow a limited number of radiofrequency devices subject to Certification to be imported into the U.S. prior to equipment authorization for certain pre-sale activities, including packaging and shipping devices, and loading devices with specific software.

TCPA Order on Reconsideration – The draft Order on Reconsideration would clarify the Commission’s previous interpretation of the TCPA that permitted government and government contractor calls without consumers’ prior express consent. The draft item would address long-standing questions regarding a 2016 Declaratory Ruling that first set guardrails on the government and government contractor exemption. The draft text of this item has not been publicly released.

Modernizing the E-Rate Program – The draft Order would amend the E-Rate invoice filing deadline rule to ensure program participants have sufficient time to complete the invoice payment process. Specifically, the Order would address situations where USAC issues a revised E-Rate funding commitment letter, in which case the FCC will allow recipients additional time to complete the work identified in the revised funding commitment. The draft text of this item has not been publicly released.

While FCC action historically dwindles going into an election year, the July agenda shows no signs of slowing down on the Commission’s main priorities. You will find more details on the most significant July meeting items after the break:

National Suicide Prevention Lifeline: The draft Report and Order would designate 988 as the 3-digit number for the National Suicide Prevention Lifeline and mental health crisis hotline (“Lifeline”). The Commission would require all telecommunications carriers, interconnected VoIP providers, and one-way VoIP providers to make any network changes necessary to ensure that all users can dial 988 to reach the Lifeline by July 16, 2022. Service providers would be required to transmit all calls initiated by an end user dialing 988 to the current toll free access number for the Lifeline (1-800-273-TALK). The Commission would also require covered providers to implement 10-digit dialing in areas that use both 7-digit dialing and 988 as an NXX numbering prefix to ensure direct dialing to the Lifeline and avoid delayed and misdirected calls.

Call Blocking Rules: The draft Third Report and Order, Order on Reconsideration, and Fourth Further Notice of Proposed Rulemaking (“FNPRM”) would continue the Commission’s efforts to stop unwanted and illegal robocalls. Consistent with the TRACED Act, the Commission would establish a safe harbor from liability for terminating providers for blocking wanted calls, as long as the call blocking was based on reasonable analytics indicating that the call was unwanted, including STIR/SHAKEN information when available. A second safe harbor would also enable voice service providers to block traffic from bad-actor upstream voice service providers that continue to allow unwanted calls on their network. Blocking providers would also be required to establish a single point of contact to remedy unintended or inadvertent blocking, and to ensure that calls to 911 are never blocked. The Commission asks for input on how it can further implement the TRACED Act, and proposes establishing obligations for voice service providers to respond to certain traceback requests, mitigate bad traffic, and take affirmative measures to prevent customers from originating illegal calls on their networks. It also would propose requiring terminating service providers that block calls to provide a list of those blocked calls to their customers on demand and at no additional charge.

Secure Networks Act: The draft Declaratory Ruling and Second FNPRM would integrate provisions of the Secure and Trusted Communications Networks Act of 2019 (“Secure Networks Act”) into the Commission’s existing supply chain rulemaking proceeding. The FCC would adopt the prohibition on the use of universal service funds for equipment and services produced or provided by companies, such as Huawei and ZTE, designated as a national security threat, upholding the 2019 Supply Chain Order. The FNPRM would seek comment on implementing certain portions of the Secure Networks Act, proposing several different processes and definitions that will aid the FCC in compiling and publishing a list of covered communications equipment and services. Additionally, the FCC proposes to: (1) ban the use of federal subsidies for any equipment or services on the new list of covered communications equipment and services; (2) require that all advanced communications providers report whether they use any covered equipment and services; and (3) establish regulations to prevent waste, fraud, and abuse in the proposed reimbursement program to remove, replace, and dispose of insecure equipment. These proposed regulations would include penalties for violations of the reimbursement program and repayment provisions for any violations. The FCC Orders issuing final designations of both Huawei and ZTE as covered companies were effective immediately upon release on June 30, 2020.

Z-Axis Location Accuracy Requirements: The draft Sixth Report and Order and Order on Reconsideration would affirm the FCC’s vertical location (“z-axis”) requirements and deadlines, building on the existing Enhanced 911 location accuracy rules to more accurately identify floor level location for wireless calls made from multi-story buildings. The FCC would adopt its proposals to require CMRS providers that elect to deploy z-axis technology meet the 3-meter accuracy metric by April 2021 for the top 25 CMAs, and by April 2023 in the top 50 CMAs, requiring 80 percent coverage of the population in a CMA. Finding that deploying z-axis technology is technically feasible in the near future, the draft ruling would require all nationwide wireless CMRS providers to deploy z-axis technology nationwide by April 2025, and require non-nationwide providers to deploy z-axis technology in their top 50 CMA service areas by April 2026. The FCC also revises its rules to allow CMRS providers to deploy dispatchable location solutions that rely on a range of technical approaches. Additionally, consistent with Kari’s Law and Ray Baum’s Act, the rules would require all CMRS providers to provide dispatchable location for individual 911 calls, if it is technically feasible and cost-effective to do so, by January 6, 2022.

Improving Broadband Data and Maps: The draft Second Report and Order and Third FNPRM would adopt specific measures and requirements to develop the new broadband maps implemented by the Digital Opportunity Data Collection and the Broadband DATA Act. Although the FCC lacks funding to implement the new maps at this time, these actions would meet the requirement to complete the broadband mapping rulemaking within the set deadline and to develop the service availability maps as soon as feasible. The draft action would adopt a number of requirements for fixed and mobile broadband providers, including specific coverage reporting and disclosure requirements and standards for data use and verification. It would also establish a Broadband Serviceable Location Fabric (“Fabric”), creating a nationwide dataset containing geocoded locations for all areas where broadband connections can be installed, as well as a Broadband Map, showing served and unserved areas for both fixed and mobile coverage. The FNPRM would seek comment on other actions that may be necessary to implement other provisions of the Broadband DATA Act, specifically on which providers are subject to the data collection, data reporting standards for fixed and mobile service, a challenge process for map accuracy, and on processes for implementing the Fabric.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Approves Seventh Set of COVID-19 Telehealth Applications, Surpasses $50 Million in Funding

On May 20, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved 43 funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $16.87 million in funding will go to health care providers across 20 states. This includes Children’s National Hospital, the first Washington, D.C. provider to receive funding. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has funded 132 health care providers in 33 states, plus D.C., for a total of just over $50 million in funding awarded.

Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. Providers therefore should take action now to assess their interest and ability to participate in the Program, if they have not already done so. On May 21, 2020, the senior counsel for the WCB’s Telecommunications Access Policy Division encouraged providers to apply as soon as possible. "Don't let the perfect be the enemy of the good" he said. “Bureau staff will work with applicants and seek clarification as needed.”

FCC, FTC Demand More Gateway Providers Cut Off Robocallers to Stop Coronavirus-Related Scams

On May 20, 2020, the FCC demanded that service providers take action to stop coronavirus-related scam robocalls from bombarding American consumers. The agency warned a number of “gateway” communications providers allegedly facilitating COVID-19-related scam robocalls originating overseas that they must stop carrying these calls or face serious consequences. Specifically, if the providers do not take action to address the scam robocalls, the FCC will allow other providers to block all traffic from these gateway providers’ networks.

This is the second such action taken by the agencies, following a similar demand in in April, when three gateway providers stopped carrying COVID-19-related scam robocalls within 24 hours of receiving the warning. The FCC and FTC have been working closely with the Department of Justice on these efforts to stop scammers from reaching American consumers. The warning shows that the FCC, FTC, and other agencies plan to aggressively address consumer protection-related issues during the crisis and will target service providers in addition to the underlying scammers to resolve problems quickly.

FCC and IMLS Partner to Keep Libraries and Communities Connected

On May 21, 2020, the FCC announced that it is partnering with the Institute of Museum and Library Services (“IMLS”) to promote use of $50 million in CARES Act funding to help address the digital divide. The CARES Act allocated $50 million in funding to IMLS, the primary source of federal funding for the nation’s museums and libraries, to enable these institutions, as well as organizations serving Tribal communities, to respond to the pandemic. This includes work to expand network access, purchase Internet accessible devices, and provide technical support services to communities. States and territories may use the funds to expand broadband access and prioritize their efforts to high-need communities. $15 million in funding will be awarded through grants to libraries and museums, as well as Tribes and organizations serving and representing Native Hawaiians. Applications are due June 12, 2020 with award announcements anticipated in August 2020.

As part of the FCC’s collaboration with IMLS, the FCC will publicize these CARES Act resources, help conduct outreach to libraries and organizations serving Tribal Communities, and provide information on broadband service providers that may be able to help. The agencies will also work together to ensure that libraries are aware that community use of Wi-Fi networks supported by the FCC’s E-Rate program is permitted during library closures.

Click here to register.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Establishes the COVID-19 Telehealth Program

On April 2, 2020, the FCC issued a Report and Order (FCC-20-44) establishing the COVID-19 Telehealth Program. The COVID-19 Telehealth Program will provide $200 million in funding, appropriated by Congress as part of the CARES Act, to help health care providers provide connected care services to patients at their homes or mobile locations. The COVID-19 Telehealth Program will provide immediate support to eligible health care providers responding to the COVID-19 pandemic by fully funding telecommunications services, information services, and devices purchased on or after March 13, 2020 until the program’s funds have been expended or the COVID-19 pandemic has ended. The COVID-19 Telehealth Program represents the FCC’s most significant action yet to ensure telehealth services remain affordable and available during the crisis.

On April 8, 2020, the Wireline Competition Bureau (“WCB”) released guidance on the COVID-19 Telehealth applications process. The barriers to funding are relatively low. There are three steps interested providers should take immediately to prepare to apply for the COVID-19 Telehealth Program: (1) obtain an eligibility determination from the Universal Service Administrative Company (“USAC”); (2) obtain an FCC Registration Number (“FRN”); and (3) register with the System for Award Management. The WCB recommends that potential applicants undertake these steps now to apply for the early stages of funding.

On April 10, 2020, the WCB announced via Public Notice (DA 20-403) that it will begin to accept applications for the COVID-19 Telehealth Program beginning today, April 13, 2020 at 12:00 PM ET. Applications for the program may be filed through a dedicated application portal, available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The WCB will accept applications on a rolling basis. To assist applicants in preparing their applications, the WCB will hold a webinar today, April 13, 2020 at 11:00 AM ET, which also will be available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The presentation will assist interested parties in navigating the application portal and provide answers to frequently asked questions regarding the COVID-19 Telehealth Program’s application process. The webinar will remain publicly available for viewing.

FCC Adopts Connected Care Pilot Program

On April 2, 2020, in the same Report and Order (FCC 20-44) establishing the COVID-19 Telehealth program, the FCC adopted the Connected Care Pilot program. This three-year Pilot Program will provide universal service support to help defray certain health care provider costs incurred in delivering connected care services, with a primary focus on services aimed at low-income or veteran patients. The FCC will support selected pilot projects to help health care providers improve health outcomes and reduce health care costs, thereby supporting efforts to advance connected care initiatives. The Pilot Program also would study how connected care could become a permanent part of the Universal Service Fund. All eligible nonprofit and public health care providers that fall within the statutory categories under section 254(h)(7)(B) of the Communications Act, regardless of whether they are non-rural or rural, can apply for funding under the Pilot Program.

FCC Extends E-Rate Program Deadlines

On April 1, 2020, the WCB granted extensions of key deadlines for participants in the Schools and Libraries (or E-Rate) program (DA 20-364). Specifically, the Bureau waived the service implementation deadline for special construction projects for all funding year 2019 applicants and extended the deadline for funding year 2020 applicants by one year (from June 30, 2020 to June 30, 2021). Under the FCC’s rules, applicants normally must complete special construction projects and the network must be in use by June 30th of the applicable funding year. With schools and libraries closed for lengthy periods of time, the Bureau recognized that service providers may not be allowed on the premises and may experience significant challenges in meeting this construction deadline. The Bureau also (1) extended the service delivery deadline for nonrecurring services for funding year 2019 by one year (from September 30, 2020 to September 30, 2021); (2) granted schools and libraries an automatic 60-day extension to file requests for review or waiver of decisions by USAC; (3) provided applicants and service providers an automatic 120-day extension of the invoice filing deadline; and (4) gave all program participants an additional 30-day extension to respond to certain information requests from USAC.

FCC, FTC Demand Gateway Providers Cut Off Robocallers

On April 3, 2020, the FCC and the Federal Trade Commission (“FTC”) demanded that service providers take action to stop coronavirus-related scam robocalls from bombarding American consumers. They specifically warned three gateway communications providers allegedly facilitating COVID-19-related scam robocalls originating overseas that they must take action to stop carrying these calls or face serious consequences. Specifically, if the providers do not take action to address the scam robocalls, the FCC will allow other providers to block all traffic from these gateway providers’ networks. The FCC and FTC have been working closely with the Department of Justice (“DOJ”) on this first-of-its-kind effort to stop scammers from reaching American consumers. The warning shows that the FCC, FTC, and other agencies plan to aggressively address consumer protection-related issues during the crisis. Click here to read more about the FCC and FTC actions.

Chairman Pai Announces More Keep Americans Connected Signatories

On March 25, 2020, Chairman Pai announced that additional service providers have signed the Keep Americans Connected Pledge (see our coverage of the pledge here). Under the pledge, service providers agree to forgo service terminations due to inability to pay, waive late fees, and open Wi-Fi hotspots for those who need them for a 60-day period. There are now 626 service providers and 14 trade associations that have signed the Chairman’s pledge.

FCC Enables Rural Broadband Providers to Waive Certain Consumer Fees

On April 1, 2020, the WCB approved waiver requests from the National Exchange Carrier Association (“NECA”) and John Staurulakis, Inc. (“JSI”) to allow the two organizations to quickly implement tariff changes to ensure that NECA and JSI participant companies have the flexibility to meet the Keep Americans Connected pledge during the COVID-19 pandemic. The WCB’s action immediately permitted waivers of late payment penalties as well as installation and early cancellation fees that the providers normally would be required to assess in accordance with their tariffs. The WCB’s waiver deserves close attention by tariffed service providers and signals the agency’s openness to regulatory relief benefitting consumers.

FCC Waives Restrictions on Hiring Contractors for ASL Interpretation Services

On April 3, 2020, the Consumer and Government Affairs Bureau granted a temporary, limited waiver of the Commission’s rule restricting providers of video relay service (“VRS”) from contracting for video interpretation services with an entity that is not itself an eligible provider (DA 20-378). With increased VRS traffic levels and employee absences due to health concerns, school closures, and other restrictions imposed by state and local authorities, VRS providers continue to face a shortage of interpreters able to work as communications assistants. By allowing VRS providers additional flexibility to contract for qualified American Sign Language (“ASL”) interpreting from other entities, such as providers of video remote interpreting, the FCC hopes to alleviate this shortage.

FCC Postponing 3.5 GHz Auction on Account of COVID-19

On March 25, 2020, the FCC announced a one-month postponement of the 3.5 GHz auction (3550-3650 GHz) in the Citizen’s Broadband Radio Service (“CBRS”), a.k.a. Auction 105 (DA 20-330). The Commission cited the need to protect the health and safety of Commission staff during the auction and the ancillary benefit that parties would have additional time to prepare to participate. FCC Chairman Ajit Pai reiterated the agency’s commitment to hold the auction this summer. The auction is the first in the so-called mid-band, a range of spectrum seen as critical to the rollout of 5G wireless applications. Commissioner Michael O’Rielly tweeted that a further delay would be unlikely absent absolutely compelling circumstances. The start of the auction has been postponed to July 23, 2020 (from June 25, 2020), and the new short-form application filing window is April 23 through May 7, 2020. For more information on the postponement and the auction, please see our blog post.

Wireline Competition Bureau Extends Mozilla Remand Comment Cycle

On March 25, 2020, in response to a March 11, 2020, petition asking for a 30-day extension, the WCB issued a Public Notice (DA 20-331) granting a 21-day extension of the comment and reply comment cycle for the proceeding in the wake of the D.C. Circuit’s remand in Mozilla v. FCC (2018). Comments are due on April 20, 2020 (from March 30, 2020), and reply comments are due on May 20, 2020 (from April 29, 2020).

In issuing the extension, the WCB agreed with the petitioners’ argument that individuals, organizations, and state and local governments whose work is dedicated to public safety are increasingly focused on managing the COVID-19 pandemic and may be unable to submit comments on the public safety issues discussed in the remand proceeding. However, the FCC cited the need for expediency in remand proceedings as the reason for granting a 21-day extension instead of the petition’s request for a 30-day extension.

In addition, the FCC took the following actions in response to the pandemic:

• On March 25, 2020, the Office of Engineering and Technology issued a Public Notice (DA 20-334) granting a 21-day extension of the reply comment deadline in the 5.9 GHz proceeding. Reply comments are now due on April 27, 2020 (from April 6, 2020). Initial comments were due on March 9, 2020. The entire 75 megahertz of the 5.850-5.925 GHz Band is allocated for connected car intelligent transportation systems using dedicated short-range communications ("DSRC") technology. Under pressure to allocate more spectrum for Wi-Fi operations and dissatisfied with the pace of DSRC development and deployment, the Commission has proposed reallocating 45 megahertz of the Band for unlicensed use and 20 megahertz to cellular vehicle-to-everything intelligent transportation system technology, while preserving only 10 megahertz for DSRC.
• On April 10, 2020, the FCC’s Office of Economics and Analytics (“OEA”) extended via Public Notice (DA 20-401) the comment and reply comment deadlines for its Public Notice, released on February 27, 2020, which sought input on the state of the communications marketplace to inform the Commission’s required assessment of competition within the communications industry in its second Communications Marketplace Report to Congress. The Report provides an opportunity for stakeholders to evaluate competitive barriers to wireless and fixed broadband deployment, as well as international services. With this extension, comments are now due April 27, 2020 and reply comments are due May 28, 2020.
• On April 1, 2020, the Wireless Telecommunications Bureau (“WTB”) announced (DA 20-365) a compilation of instructions for filing Special Temporary Authority (“STA”) and waiver requests in response to the declaration of national emergency due to COVID-19 issued on March 13, 2020. The WTB STA and Wavier Filing Guide can be found online here. On April 10, 2020, the Public Safety and Homeland Security Bureau provided guidance to public safety entities on requesting STA and waivers (DA 20-404). All providers should consider whether an STA is appropriate to provide additional flexibility and improve service.
• ​On March 27, 2020, the FCC granted​ STA for 33 wireless Internet service providers (“WISPs”) to use the lower 45 megahertz in the 5.850-5.925 GHz Band for 60 days to address the increase in consumer demand because of the COVID-19 pandemic. Participating WISPs are required to file FCC Form 601 (application for an STA) within 10 days to access the full 60-day STA, and are required to operate in the band on a secondary, non-interference basis so as not to interrupt existing DSRC and federal radiolocation operations.
• ​On March 26, 2020, the FCC's WTB granted AT&T Special Temporary Authority (“STA”) to utilize additional spectrum in Puerto Rico and the U.S. Virgin Islands for 60 days to handle increased network traffic as a result of the COVID-19 pandemic. On March 30, 2020, the WTB granted A:shiwi College & Career Readiness Center an STA to utilize unassigned Educational Broadband Service(“EBS”) spectrum for 60 days in the eligible rural tribal land on the Zuni Reservation in New Mexico for similar reasons. These STAs are in addition to the ones previously granted by the Commission. ​
• On April 10, 2020, the FCC’s WTB enabled AT&T to deploy two cell sites in Wisconsin to support wireless service for a critical medical facility. That facility is being constructed by the U.S. Army Corps of Engineers at the Wisconsin State Fair Park in Milwaukee, Wisconsin to care for COVID-19 patients. The WTB granted AT&T’s request to expedite environmental review of the two proposed wireless tower sites, which will also serve first responders as part of AT&T’s FirstNet public safety broadband network. It is likely that the FCC will grant similar requests to expand communications infrastructure during the crisis.
• On April 2, 2020, the Public Safety and Homeland Security Bureau released a Public Notice (DA 20-367) reminding authorized alert originators, including state and local governments, that the Wireless Emergency Alert (“WEA”) system is available as a tool to provide life-saving information to the public during the coronavirus COVID-19 pandemic. In recent years, the FCC, together with the Federal Emergency Management Agency (“FEMA”) and participating wireless service providers, have taken important measures to promote the effectiveness of WEA, and to make such messages more accessible, including the capability to send more detailed alerts of up to 360 characters for 4G-LTE networks, the option to convey recommended actions for saving lives or property for use in connection with Imminent Threat Messages, and the ability to send alerts in Spanish.
• On March 26, 2020, the WCB waived a number of rules in its Rural Healthcare Program affecting existing users of the support programs. Most importantly, the Bureau’s order (DA 20-345) permits RHC applicants to extend existing evergreen arrangements with service providers by one year, without conducting an additional competitive bidding process, thereby ensuring continuity of service during the crisis. This builds on the Commission's previous waiver of rules for both the Rural Healthcare Program and the E-Rate program.
• On March 30, 2020, the FCC's WCB issued an order (DA 20-354) waiving certain rules requiring involuntary de-enrollment of Lifeline subscribers, including for non-usage of the service, until May 29, 2020. The Bureau also extended the previous waivers​ of the annual recertification and National Verifier reverification process de-enrollments to May 29 so that all of the waivers will expire at the same time.

Although the March agenda is relatively light, the STIR/SHAKEN and access charge items could significantly impact provider costs, tariffing practices, and billing procedures. As a result, providers should closely examine the FCC’s proposals and get their input in early in light of the agency’s recent decision to restrict in-person meetings and expand telework in response to the coronavirus pandemic. You will find more information on the key March meeting items after the break:

Mandating STIR/SHAKEN Framework: The TRACED Act mandates a number of measures designed to combat unlawful robocalls. One of the key measures in the Act is a requirement that all voice providers implement SHAKEN/STIR in IP networks and an alternative call authentication framework in non-IP networks. The draft Report and Order and Further Notice of Proposed Rulemaking responds to these mandates in the Commission’s existing call authentication docket. The draft order would mandate that originating and terminating voice service providers implement the STIR/SHAKEN framework in the IP portions of their networks by June 30, 2021. A carrier’s obligations under the proposal would vary depending on where it is in the call chain. First, a voice service provider that originates a call that exclusively transits its own network would be required to authenticate and verify the caller ID information in accordance with the STIR/SHAKEN framework. Second, a voice service provider originating a call that it will exchange with another provider would be required to authenticate the caller ID information in accordance with the STIR/SHAKEN framework and (unless technically impossible) transmit that information to the next provider in the call path. Finally, a voice service provider terminating a call with caller ID information it receives from another provider would be required to verify that information in accordance with the STIR/SHAKEN framework before delivering the call to an end user. The FCC would estimate carrier STIR/SHAKEN implementation costs to range from $15,000 to $300,000.

In the FNPRM portion of the order, the FCC plans to seek comment on whether it should extend the STIR/SHAKEN implementation deadline for smaller voice service providers (i.e., those with 100,000 or fewer subscriber lines), as well as those operating in rural areas, so long as they adopt a robocall mitigation program. The FCC also plans to ask whether it should expand the STIR/SHAKEN mandate to cover intermediate voice service providers that neither originate nor terminate calls, and require them to pass along any verified caller ID information they receive. In addition, the FCC would request input on requiring voice service providers using legacy time-division multiplexing and other non-IP technologies to either (1) upgrade their networks to IP to enable the implementation of the STIR/SHAKEN framework or (2) develop a non-IP caller ID authentication technology and adopt a robocall mitigation program in the interim. The FCC anticipates adopting procedures to exempt providers from the full STIR/SHAKEN implementation process in exchange for meeting aggressive call authentication deployment milestones. The Commission also would seek comment on implementing the TRACED Act’s prohibition on voice carriers imposing additional line item charges on consumers and small businesses for the costs of implementing caller ID authentication services.

The FNPRM also would address a topic identified in the TRACED Act for further Commission inquiry. The Act requires the Commission to examine measures to bar access to numbering resources by service providers allegedly assisting unlawful spoofing or robocalling operations. The Commission would examine a number of options for doing so, including imposing “know your customer” obligations on RespOrgs and carriers receiving numbering resources and/or imposing U.S. residency requirements for telephone numbers.

The draft order would include an expedited comment period for these questions. Comments on the proposed STIR/SHAKEN reforms would be due by May 15, 2020, with reply comments due by May 29, 2020.

Deregulating End-User Access Charges: The draft Notice of Proposed Rulemaking would eliminate FCC pricing regulation for five access charges currently included in some carrier tariffs: the Subscriber Line Charge, the Access Recovery Charge, the Presubscribed Interexchange Carrier Charge, the Line Port Charge, and the Special Access Surcharge. These charges represent the last handful of interstate end-user charges subject to ex ante price regulation by the agency. The FCC would find that increased competition in the voice service market, including by interconnected VoIP, wireless, and over-the-top providers, ameliorates the need for strict pricing controls for these charges. The Commission would seek comment on completely prohibiting carriers from tariffing the charges or whether alternative approaches are necessary to address areas where competition may be lacking. The FCC also would request input on barring carriers from assessing the charges through separate line items on customer bills. The FCC would find that the current descriptions of the charges vary significantly among carriers and unnecessary complicate customer bills. As many of the charges currently are used in the calculation of high-cost support and universal service contributions, the FCC would ask how it can ease the deregulation transition for carriers to ensure they receive sufficient support without increasing the contribution burden.

Comments on the proposed access charge reforms would be due 30 days after Federal Register publication of the item, with reply comments due 15 days later.

Once these rules take effect, the FCC closes a significant gap in its prior rules – calls which originate outside the United States – at the same time that it acts preemptively to prohibit deceptive spoofing in a growing area – text messaging. In the process, the FCC will enhance one of its most commonly used tools in its effort to combat unlawful robocalls – fines for unlawful spoofing. Generally, the FCC has attacked parties that originate unlawful robocalls by fining them for the subsidiary violation of spoofing the unlawful calls. In telecommunications enforcement, spoofing violations are the tax evasion charges to Al Capone’s criminal enterprise.

Expansion of the Spoofing Prohibition

The first change adopted in the August 1 Report and Order was to expand the rules to cover communications originating outside the United States directed at recipients within the United States. The existing rules only applied to persons and entities within the U.S. The new rule states:

“No person in the United States, nor any person outside the United States if the recipient is in the United States, shall, with the intent to defraud, cause harm, or wrongfully obtain anything of value, knowingly cause, directly, or indirectly, any caller identification service to transmit or display misleading or inaccurate caller identification information in connection with any voice service or text messaging service.”

The second change, also incorporated in the rule above, applies the rule’s prohibition beyond voice communications to include text messages. The definition of text messages includes text, images, sounds, or other information transmitted to or from a device, specifically covering short message service ("SMS") and multimedia message service ("MMS") messages. Also covered by the rules are messages sent to or from Common Short Codes (Short Codes), which are the 5- or 6-digit codes commonly used by enterprises to communicate with consumers at high volume.

Not included in the definition is real-time, two-way voice or video communications and messages over IP-enabled messaging services so long as the communication is to another user of the same messaging service. Thus, the rules do not reach messages sent via common OTT applications such as iMessage, Google Hangouts, Whatsapp, and direct message features in Snapchat and Twitter. Rich Communications Services ("RCS") messages, which allow advanced messaging features, are also excluded. The Commission determined that Congress intended for RCS messages to fit under the statutory exclusion for “IP-enabled communications.”

The Commission also clarified its definition of “voice service” to ensure the rules cover the broader “telecommunications service,” as well as interconnected VoIP.

Implementing the RAY BAUM’S Act

The rule changes were required by amendments to the Communications Act, made by the RAY BAUM’S Act of 2018, which strengthened the FCC’s authority over spoofed calls established in the Truth in Caller ID Act of 2009. The 2009 legislation prohibited the use of misleading and inaccurate caller ID information for harmful purposes, but in a 2011 report, the FCC recommended that Congress update the rules to give the Commission authority to prohibit calls outside of the U.S. and make explicit that the Act covers text messages. The order also cited a May 2019 filing by 42 state attorneys general urging the Commission to adopt the rules.

While all voting commissioners supported the order, Commissioner Mike O’Rielly expressed some reservations prior to the vote. In particular, he said he thought the extraterritorial jurisdiction would be difficult to execute and would have preferred narrower statutory language, but did not believe it was his role to “challenge the wisdom” of the legislature. He also said the definitions of text and voice services were broader than he wanted, which he thought might cause future unintended consequences.

The new rules will go into effect on February 6, 2020, or 30 days after Federal Register publication, whichever is later.

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This report prompted commentary from Commissioner Rosenworcel, who tweeted that these “measly efforts” were “not making a dent in this problem” and called for carriers to provide free call blocking tools to consumers. In our view, however, the report really doesn’t relate to the vigor – or alleged lack thereof – of FCC robocall enforcement efforts. Instead, the small amount of assessed fines that are actually collected starkly demonstrates the internal and external hurdles faced by the FCC, which impact all types of enforcement actions, not just robocalls. The report likely will rekindle Congressional criticism of FCC enforcement processes and calls for more systematic solutions to the problem of unwanted calls.

The collection issues outlined in the report are not unique to robocalling enforcement. Rather, the low collection rates are a function of the process for collection and the parties against whom cases typically proceed to forfeiture (versus those settled by consent decrees). These problems predominate in all areas of FCC enforcement.

First, the FCC faces significant procedural hurdles, both inside and outside the agency, to forcing violators to pay assessed fines. As we previously highlighted in our podcasts, unlike many other federal agencies, the FCC does not have the authority to sue violators directly in court to collect unpaid fines. Instead, the agency must refer unpaid penalties to the Department of Justice (“DOJ”), which has the final say on whether or not to bring a collection action in court. In many cases, DOJ attorneys may be unwilling or unable to take on FCC collection action referrals due to resource constraints or higher-priority cases. If the DOJ sues, the party against whom the collection action is brought is entitled to a “trial de novo,” which presents the potential for complicated litigation over the facts of the violation and the FCC’s legal conclusions in assessing the fine. Perhaps as a result of this, in our experience, even when federal prosecutors do act on referrals, they often agree to settlements below the penalty originally assessed by the FCC. Moreover, in the case of robocall enforcement, some of the targets against whom the fines were assessed are foreign persons or corporations. Collection actions against foreign nationals raise complicated process issues, and often at a minimum involve significant delay before a collection action can be commenced.

Second, the parties against whom forfeiture actions are taken play into this. Most FCC enforcement is against entities that hold licenses or other authorizations from the agency. These entities often are motivated to resolve an enforcement allegation by consent decree, many times even before a formal action is brought. Given the importance of a good relationship with one’s primary regulator, it is not hard to understand why most parties may settle allegations even if they disagree with the FCC’s factual findings or legal conclusions. However, in some cases, the FCC’s posture makes settlement unattractive or, potentially, impractical. It is here where the FCC arguably deserves some of the blame for the dearth of fine collections, at least in the context of robocall violations. Nearly all of the recent robocall-related enforcement actions targeted small companies and/or individuals. The FCC imposed millions in penalties in these cases despite (likely credible) claims by the violators that they could not pay the proposed amounts. The Communications Act requires the FCC to consider a violator’s ability to pay when assessing fines. But the FCC found in the robocall cases that the violator’s inability to pay was outweighed by other statutory factors, including the alleged egregiousness of the violations, warranting the hefty penalties regardless. As a result, the FCC assessed fines for robocall-related violations and other misconduct that it very likely knew were uncollectible, possibly in order to send a message, set precedent, and/or to push the offending companies out of business. As most FCC collection actions result in settlement, very few cases see the inside of the courtroom and the agency’s practice of assessing fines far beyond a violator’s ability to pay thus far has escaped judicial scrutiny.

As a result, in some ways all FCC fines face obstacles to collection, and the FCC’s choice of targets thus far in robocall enforcement made collection even more unlikely. With this situation unlikely to change, the report may inject new life into FCC policy proposals to curb unwanted calls. In particular, the FCC recently began using its bully pulpit to push changes by service providers to limit robocalling opportunities. In November 2018, Chairman Pai issued a letter asking service providers about their efforts to implement call-verification systems like SHAKEN/STIR and threatened regulatory action in 2019 if carriers do not voluntarily implement such systems. The Chairman also urged all carriers to participate in USTelecom’s Traceback Group, which helps identify sources of unwanted calls. Commissioner Rosenworcel’s call (joined by some consumer advocacy groups) to require carriers to block robocalls fits in this same vein. The FCC has not teed up any rulemakings on these proposals yet, but whether a carrier has sufficient “safeguards” in place to limit unlawful robocalls will be a major FCC policymaking focus area this year.

More broadly, the factors limiting FCC collection of fines will remain. Until there is an easier path to judicial review of FCC enforcement actions, and unless and until parties against whom forfeitures are assessed have the means to dispute and, ultimately, pay, FCC fines, we don’t expect material differences in FCC collection rates. Perhaps it is time to examine fundamental reform to the FCC’s enforcement authority and procedures.

The irony of John Oliver making robocalls in order to protest robocalls is rather funny. But, it raises the question – are these calls legal? The fact that the calls appear to be lawful – and would be legal regardless of the action Oliver called for in the program – highlights that there is an important distinction between illegal calls and unwanted calls. In the end, Oliver’s segment demonstrates some of the problems with modern efforts to apply the Telephone Consumer Protection Act (“TCPA”), a statute that was adopted well before the proliferation of cell phones in America, and seems to deter many legitimate calls while not sufficiently stopping scam calls.

Under the TCPA, it is unlawful to place an autodialed or a pre-recorded message call to certain phones without consent from the called party. Each of these elements – whether the call is autodialed or contains a pre-recorded message, the phone to which the call is made and whether consent is obtained – are relevant to determining the legality of any specific call. This makes for a complex, fact-based analysis as to whether any calling campaign is lawful or not.

The definition of an “automated telephone dialing system” or “ATDS” is one of the primary issues before the FCC today. An ATDS is defined in the statute as a device with the capacity (a) “to store or produce telephone numbers to be called, using a random or sequential number generator” and (b) “to dial such numbers.” The FCC over the years has taken an ever-expanding view of what falls within the scope of an ATDS, which has created significant uncertainty and inconsistency in federal courts that have jurisdiction over complaints alleging violations of the TCPA. The inconsistency and uncertainty has hampered legitimate efforts to provide information beneficial to consumers, and has led to a steady stream of petitions for clarification to the FCC itself.

Most recently, in 2015, the FCC adopted a new and even broader definition of ATDS that turned on a device’s “capacity” to function as an autodialer. Specifically, the FCC defined equipment as an autodialer if it contained the potential “capacity” to dial random or sequential numbers, even if that capacity could be added only through specific modifications or software updates (so long as the modifications were not too theoretical or too attenuated). Under this revised interpretation, any equipment that could be modified to dial numbers randomly or sequentially would be an ATDS – and therefore subject the caller to potential liability under the statute.

The Court of Appeals for the D.C. Circuit, which was asked to review this definition, was troubled by the “eye-popping” reach of the FCC’s interpretation, finding that it could be applied to any smartphone, and found that such a reach could not be squared with Congress’ findings in enacting the TCPA. The Court observed that the FCC’s interpretation was “utterly unreasonable in the breadth of its regulatory [in]clusion.” It rejected the FCC’s justification that a broad reach was necessary to encompass “modern dialing equipment,” concluding that Congress need not be presumed to have intended the term ATDS to apply “in perpetuity” and citing paging services as an example of TCPA provisions that have ceased to have practical significance. The Court also found that the confusion over the term “capacity” as it relates to the ATDS definition was multiplied by the FCC’s insufficient explanation of the requisite features that the covered ATDS equipment must possess. The Court set aside the prior interpretation and handed the issue back to the FCC for further analysis and explanation. In the year since that decision, the FCC sought comment on how to respond to the D.C. Circuit’s ruling and appears to be close to issuing a decision on the remanded issues. (As we have explained previously, Chairman Pai’s dissent to the 2015 ATDS definition may be indicative of how the FCC will approach the issue under his leadership.)

Which brings us back to John Oliver. Apparently concerned that the FCC would narrow the definition of ATDS, Mr. Oliver decided to take to the phones to call the FCC. And he is. He announced during his show that he had set up a program that would automatically dial each of the five FCC commissioner’s offices every 90 minutes and play a satirical pre-recorded message urging them to take action to stop robocalls.

But are these calls legal? Actually, it is very likely that they are. Oliver is sending a call containing a pre-recorded message, which satisfies the first element of the TCPA’s applicability. (The calls likely were sent with an autodialer too.) Because Oliver is calling the FCC’s office numbers – which are non-residential landline phones – those calls actually are not affected by the TCPA or the current definitional issue for the FCC. As consumers receiving political robocalls know, calls to landlines don’t require prior consent because the TCPA’s restrictions on the use of an ATDS or pre-recorded message don’t apply for landlines unless a call “introduces an advertisement or constitutes telemarketing.”

Further, the issue of revocation of consent to receive autodialed calls also does not come into play. Oliver spent some time on this show criticizing the “fine print” that some parties use for revoking consent to receive calls. However, Oliver’s explanation that the FCC could “revoke” consent for his calls by sending a certified letter to an address “buried somewhere within the first chapter of Moby Dick” that was quick-scrolled across the screen at the end of the episode, while entertaining, had no legal significance. (And, in any event, the FCC’s 2015 conclusion that consumers may “revoke consent at any time and through any reasonable means” was upheld by the D.C. Circuit upon review.) Put simply, consent is not required for the calls that Oliver is making, and revocation of consent similarly is not relevant to the calls. Nor does the TCPA limit the number or frequency of calls, so the 90-minute intervals for his calls do not amount to a violation of the statute. Finally, Oliver rightly observed during his segment that the National Do Not Call Registry only applies to telemarketing calls, so even if the FCC commissioners registered their office phone numbers on the National Do Not Call Registry, Oliver’s calls to them would not be unlawful.

What does it all mean? In part, it means that John Oliver was taking a bit of comedic license in order to be funny (which he is of course entitled to do). But more deeply, the stunt demonstrates that the TCPA isn’t really about unwanted calls, even though some will talk about the Act as if it were. Too often, the frustration of consumers is directed to unwanted calls when the proper question under the TCPA is whether calls are illegal. Moreover, an autodialed call is not necessarily unwanted, and consumers may be less concerned with how the call is placed than they are with its content. Nor are calls placed without the consent of the recipient necessarily illegal. This is true of Oliver’s calls to the FCC, but also of emergency calls, free messages from your wireless carrier and certain health-related calls, areas where the FCC has carved out exceptions to the consent rules.

Further, one lesson here is that, unlike net neutrality and other issues that are highly contentious and divisive, everyone seems to be relatively on the same side when it comes to robocalls. John Oliver and Chairman Pai would almost certainly agree that additional steps to prevent scam calls – like someone impersonating the IRS or falsely stating that a consumer has won a free cruise – are needed. And to be fair, the FCC is taking actions aimed at reducing these calls, such as allowing voice service providers to block calls from invalid, unallocated, and unassigned numbers before they ever reach a consumer’s phone, supporting development of the industry-led call authentication framework to combat deceptive spoofing, and voting to create a single, nationwide database for reporting number reassignments in order to reduce calls placed in good faith to the wrong party. But the public debate needs to be clearer – the key is figuring out whether what’s being done is effective at stopping illegal calls. Inflaming the public over every unwanted call does not help advance a workable solution to the real problem.

Text Messaging Classification: The draft Declaratory Ruling would classify the two most popular forms of text messaging – Short Message Service (“SMS”) and Multimedia Messaging Service (“MMS”) – as information services subject to light-touch regulation, and not commercial mobile services required to comply with legacy common carrier rules. In doing so, the FCC would note that text messaging services possess the capacity to store and retrieve information normally found in information services, such as email. FCC rules significantly curtail the ability of common carriers to block the transmission of communications. The FCC is concerned that applying the common carrier classification to text messaging would prevent service providers from utilizing anti-spoofing, anti-spam, and anti-robotext technologies. By officially declaring text messaging an information service, the FCC is hoping to spur further adoption of these blocking technologies and keep text-massaging relatively spam-free.

Reassigned Numbers Database: The draft Report and Order would establish procedures to create a single database that will enable robocallers and others to verify whether a particular number has been permanently disconnected, meaning the number may have been reassigned to a new consumer. With limited exceptions, federal law prohibits robocalls to wireline and wireless phones without the called party’s prior consent. As a result, a business could be subject to liability for making a call to what it thought was a consenting customer when the number actually was reassigned to a new consumer that never provided consent to receive such traffic. The FCC expects the database to reduce these incidents after its implementation, which could occur as early as next year. But just as important as what the draft item would do is what it would not do. The FCC would not establish a safe harbor for callers that rely on the database but still reach a number assigned to a non-consenting consumer. In fact, the FCC explicitly would decline to address outstanding issues regarding the definition of an automatic telephone dialing system and potential liability for calls to reassigned numbers stemming from the D.C. Circuit’s ACA International v. FCC decision earlier this year, stating that it will take up these issues in a separate proceeding.

Spectrum Frontiers Auctions: The draft Report and Order would adopt rule changes to facilitate a consolidated auction of high-frequency spectrum in the Upper 37 GHz Band (37.6-38.6 GHz), 39 GHz Band (38.6-40.0 GHz), and 47 GHz Band (47.2-48.2 GHz). The draft item would modify the band plans for these frequencies to move from 200 megahertz channels to 100 megahertz channels to facilitate incumbent repacking, ensure consistency with international allocations, encourage equipment standardization across spectrum bands, and promote secondary market transactions. The new licenses would be auctioned on a Partial Economic Area (“PEA”) basis. The draft item also would lay the groundwork for the FCC’s second incentive auction. The 39 GHz Band is home to incumbents holding licenses in non-contiguous spectrum blocks that overlap multiple PEAs. In order to resolve these encumbrances, incumbents would be afforded the options of either modifying their licenses or relinquishing their licenses in exchange for “vouchers” of “equivalent value” to use in bidding for new licenses at the auction or cash incentive payments. The FCC expects to complete the auction by the end of 2019.

Rural Broadband Funding: The draft Report and Order, Notice of Proposed Rulemaking, and Order on Reconsideration would offer additional funding to certain carriers, predominately located in rural areas, that currently receive so-called “model” (versus legacy rate-of-return) support under the Connect America Fund. In exchange for additional funding of up to $200 per location, the carrier would need to expand the availability of broadband service meeting the FCC’s current high-speed benchmark of 25 Mbps download/3 Mbps upload in current service locations and provide broadband service of at least 10 Mbps download/1 Mbps upload speeds in new service locations. The item would provide opportunities for legacy rate-of-return carriers to receive additional funding and transition to model-based support if they can meet the high-speed benchmark. The item also would seek comment on whether the FCC should award support in areas “overlapped” by unsubsidized competition through an auction. The FCC would ask how it should determine whether an area is sufficiently overlapped, the appropriate size of the areas to be auctioned, and the auction bid weighting methodology. Finally, the draft item would deny reconsideration of the FCC’s decision earlier this year to increase model-based support.

Communications Marketplace Report: The draft Report would provide an overview of competition in mobile wireless, fixed broadband, audio, video, and satellite communications markets. The Report would assess the state of communications deployment and barriers to market entry. It also would compile a list of geographic areas not served by any provider of advance telecommunications. The FCC is required to issue the Report this month under the RAY BAUM’S Act passed earlier this year. The Report consolidates and replaces a number of separate reports covering different areas of the communications industry, such as the annual mobile wireless competition report required by Section 332 of the Communications Act and the report on cable industry prices required by Section 623 of the Communications Act. However, the broadband deployment report required by Section 706 of the Communications Act would remain separate, along with other FCC reports not covered by the RAY BAUM’S ACT. The next Report is due by the end of 2020.

A Notice of Inquiry is used to gather general information on a topic, before specific rules are proposed. Here, the NOI targets information on options for establishing a database of reassigned telephone numbers.

Feasibility of Reporting Reassigned Numbers

The NOI suggests that approximately 35 million telephone numbers are “disconnected and aged” each year, but seeks comment on the quantity of telephone numbers that are reassigned, including the type of service involved in reassignments and over what time period reassignments are made. The NOI next seeks comment on the costs and benefits of voice service providers reporting reassigned number information. It suggests that providers would not be “greatly burdened” by such reporting, but seeks feedback on how the Commission “can reduce the burden on smaller providers, including by extending implementation timelines.”

Safe Harbor Protection for Callers

Database Issues

The Road Ahead

The Commission seeks comment on the three-phase process put forward by the Alliance for Telecommunications Industry Solutions (ATIS) and SIP Forum. Phase one involves the development of the Secure Handling of Asserted information using toKENS (SHAKEN) framework, based on the protocols developed by the Internet Engineering Task Force (IETF) Secure Telephone Identity Revisited (STIR) working group. As the Commission explains, “in the SHAKEN/STIR model, a call is authenticated when it is signed with a digital signature by an authentication service, operating on behalf of the party originating the call.” Phase two will define how the authentication services are to receive certificates in the first place. Phase three is still being developed by ATIS and the SIP Forum.

The NOI seeks comment on what the Commission should do, if anything, to promote adoption and implementation of authentication frameworks (such as the SHAKEN and STIR frameworks). The Commission asks for comment on the appropriate time frames and milestones for implementation of the frameworks. ATIS has suggested that the SHAKEN and STIR models require a “governance authority” and “policy administrator.” In the NOI, the Commission asks what entity or entities would best serve in those roles, recognizing that the Commission could serve some of the functions, but may not be best positioned to handle all aspects of the positions. Because the SHAKEN and STIR proposals apply to SIP-based, but not SS7-based systems, the Commission also seeks comment on the role of SS7 and other legacy technologies in this proceeding.

As with most items under Chairman Pai, the NOI seeks comment to inform a cost and benefit analysis. The Commission asks for high-level estimates of the costs of implementing call authentication, as well as estimates of the benefits of an authentication system. The Commission asks how these costs might be shifted among relevant stakeholders, and if end-user fees could be expected to cover service costs.

Outlook

This proceeding is an outgrowth of the industry Robocall Task Force convened by Chairman Wheeler last year. The goal of the authentication framework is to better identify callers, so that any measures to combat unlawful or abusive calling patterns can be more reliably addressed by carriers. The action fits with Chairman Pai’s aggressive effort to end “robocalls” but, as with other actions, demonstrates a methodical approach to the problem. Despite broad goals, the action is a notice of inquiry only. The Commission would have to adopt a separate notice of proposed rulemaking before it can mandate any call authentication process.

Chairman Pai is a supporter of the Telephone Consumer Protection Act (TCPA or Act), the federal statute aimed at limiting the number of telemarketing calls that consumers receive. However, he was highly critical of the FCC’s interpretation of the Act under his predecessor. Notably, then-Commissioner Pai issued a scathing dissent to the Commission’s 2015 omnibus TCPA Declaratory Ruling and Order, which in his view, improperly expanded the definition of an “autodialer” and imposed a near-strict liability standard by adopting the one-call safe harbor for calls to reassigned phone numbers. Chairman Pai also dissented in part from the Commission’s determination in a July 2016 declaratory ruling that federal contractors are not persons under the Act and therefore not subject to TCPA liability. In that dissent, he stated that the Commission’s interpretation contradicts the plain meaning of the statute, and “it is odd to suggest that a contractor’s status as a ‘person’ could switch on or off depending on one’s behavior or relationship with the federal government.” Less than a month later, he likewise dissented from the Commission’s order adopting rules to implement a new government debt collection exemption to the TCPA, on the basis that the restrictions the FCC imposed contravened Congress’s intent in creating the exemption.

During his remarks on Friday, Chairman Pai said “the problem is only getting worse and that's why I hope the Commission will take aggressive action, hopefully with your counsel, to end it.” He did not detail any particular initiatives that he plans to undertake to address the issue of unlawful telemarketing calls. However, we anticipate that his approach will focus more on industry collaboration rather than unilateral action by the Commission. Some ideas for which he suggested he might seek industry input include establishing a safe harbor for carriers so they can block spoofed calls from overseas without fear of liability and developing a reassigned number database to help legitimate callers avoid dialing the wrong number. Chairman Pai also noted that the Commission may consider overturning the federal contractor exemption in order to “close a potential loophole in [the Commission’s] robocalling regulations.”

We will continue to monitor the FCC’s TCPA-related actions in the coming months. Check back here for any updates.

Last Thursday, the FCC held an hour-long “town hall” session on Twitter during which FCC staff clarified restrictions on autodialed calls that can be placed to consumers’ home and wireless phone numbers. Several tweets released during the session also told consumers how they could file complaints if they receive what they believe to be an impermissible call, and encouraged consumers to visit the FCC’s website to learn more about the Commission’s initiatives on this issue.

And yesterday, the FCC announced that the Consumer and Governmental Affairs Bureau will host a webinar for consumers entitled “How to Deal with Robocalls” on Wednesday, December 14, 2016 from 1:00 PM – 2:00 PM. A detailed agenda for the webinar will be released at a later date, but the FCC indicated in its Public Notice that the event “will explain the FCC’s role in addressing this issue and the steps consumers can take to protect themselves from and/or decrease the amount of robocalls they receive.”

Of particular interest was the Chairman’s statement that he recently sent letters to the CEOs of major wireless and wireline phone companies, as well as intermediary carriers that connect high volume callers to the consumer’s phone company, calling on them to either offer or facilitate the offering of call-blocking technologies that would curb the number of calls consumers receive. He further implored these companies to “accelerate the development and deployment of technical standards that would prevent spoofing of caller ID and thus make blocking technologies more effective, as was done in the battle against spam years ago.” The post added “[t]he Commission has done its part, making clear that phone companies face no legal barriers to helping consumers block unwanted calls with the use of robocall blocking technology. Today, we urge carriers to step up to take that responsibility.” Chairman Wheeler noted that he asked all recipients of these letters to “respond within 30 days with their concrete, actionable solutions to address these issues.” Just three days after the release of the blog post, AT&T responded to the Chairman’s request, stating that it would begin offering call blocking services to its customers.

Chairman Wheeler also highlighted recent enforcement actions and rulemakings in response to complaints about particular companies or narrow issues related to calls under the TCPA (such as the current rulemaking to regulate government debt collection calls). He further suggested that additional clarification from the Commission “relating to certain robocalls that utility companies and schools can make” will be coming soon. Presumably this statement refers to declaratory rulings in response to petitions filed by Blackboard, Inc., and the Edison Electric Institute and American Gas Association, which sought clarification on the permissibility of placing non-telemarketing, informational calls on behalf of school districts and utility/electric companies.

The FCC under Chairman Wheeler has been one of the most active consumer enforcement Commissions in recent memory. We expect the Chairman to continue to push this consumer enforcement agenda in the coming months, particularly with respect to TCPA issues. As such, companies that may be subject to the FCC’s jurisdiction due to their telemarketing efforts should take precautions in order to avoid being the subject of unwanted FCC attention.