FCC Takes Stand Against Spoofed Calls and Text Messages with Proposed Rules Targeting Calls Originating Overseas

Last week, the Federal Communications Commission (FCC) announced that it released proposed rules banning illegal spoofed text messages and calls from overseas, where it is widely believed many of these spoofed communications originate. A copy of the Notice of Proposed Rulemaking can be found here.

The RAY BAUM’S Act of 2018 extended the applicability of the Truth in Caller ID Act of 2009 to calls and text messages that originate from outside of the country. The proposed rules implement the statute and extend the prohibitions to short message service (SMS) and multimedia message service (MMS) text messages as well as one-way interconnected VoIP calls.

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In their individual statements, the Commissioners unanimously supported the action, although some are more reserved about the solution than others.

“While the expanded jurisdiction provided by [RAY BAUM’S] Act won’t solve all the challenges involved in bringing foreign criminals to justice, such as obtaining traceback-related subpoenas and accessing the cooperation of countries with weaker legal institutions, the explicit provisions should at least help the Commission cut through red tape in friendly nations,” states Commissioner O’Reilly.

Chairman Ajit Pai stated that the FCC received more than 52,000 complaints last year about caller ID spoofing and discussed how he demanded earlier this week that industry deploy a robust caller ID “authentication” system. Commissioner Carr notes that robocalls are the FCC’s top enforcement priorities. However, Commissioner Rosenworcel argues that the Commission is not doing enough in the enforcement category considering the prevalence of the issue. She states:

But I think rulemakings and reports have their limitations. It’s action that counts. In the past twenty-four months, this agency has had no more than a handful of enforcement actions involving illegal robocall[] schemes. Our work is too slow. We are trying to empty the ocean with a teaspoon. We need more dedicated resources. […] Why not create a division that will combat robocalls? If year-in and year-out this is the single largest source of consumer complaints at this agency, how about organizing our enforcement efforts to reflect that? I think that’s what we need to do and I think the time to do it is now. Before spoofed calls, robocalls, Rachel calls, or any of it gets any worse

According to Commissioner Starks’ statement, innovation must continue at the FCC. “We must continue to refine our tools, because we can be sure robocallers will try to find new and innovative ways to break through. In this battle, this additional authority [provided by RAY BAUM’S ACT] is essential and welcomes – the Commission will be better able to find illegal robocallers, stop them, and hold them accountable.”

insideARM Perspective

The proposed rules were issued on the same day as the report on illegal robocalls. The report mirrors the Commissoners’ statements above about the prevalence of spoofed robocalls and discusses the different initiatives the FCC has undertaken to combat this issue. The report listed four challenges facing the FCC in enforcement against spoofed robocalls:

• Many illegal robocalls seem to originate in foreign countries.
• These calls appear to be coming from VoiP providers, many of whom do not update the FCC nor keep accurate records of all calls made across their networks
• The short statute of limitations for Telephone Consumer Protection Act (TCPA) actions makes it difficult for the FCC to complete complex investigations into the issue.
• Notice via citation requirements that the FCC must follow prior to a forfeiture proceeding give time for offenders to incorporate under a new name and evade the issue.

The proposed rules would likely address the first issue, but the other three remain open. Solving for these issues isn't simple. For example, increasing the statute of limitations for the TCPA might give more time for the FCC to investigate overseas spoofers, but it would cripple businesses -- some to the point where they can no longer operate and have to close -- because of the downpour of TCPA litigation resulting from inconsistent court rulings and lack of clarity from the FCC in how the statute should be interpreted. Any solution to the above-listed challenges must be viewed in context of the whole landscape.