On the eve of New Year’s Eve, in addition to dealing with Telephone Consumer Protection Act (TCPA) exemptions, the Federal Communications Commission (FCC) takes further steps to satisfy certain obligations imposed under the TRACED Act. In its Fourth Report and Order (R&O) in CG Docket No. 17-59, the Commission: (a) requires “voice service providers to meet affirmative obligations and to better police their networks against illegal calls,” (b) expanded its “existing call blocking safe harbor safe to cover network-based blocking of certain calls that are highly likely to be illegal,” (c) adopts “rules to provide greater transparency and ensure that both callers and consumers can better identify blocked calls and ensure those that are wanted are un-blocked,” consistent with the TRACED ACT and (d) broadens its “point-of-contact requirement to cover caller ID authentication concerns” under the TRACED Act
Consistent with its July 2020 order on call blocking (https://docs.fcc.gov/public/attachments/FCC-20-96A1.pdf), the FCC defines “voice service provider” as “any entity originating, carrying, or terminating voice calls through time-division multiplexing (TDM), Voice over Internet Protocol (VoIP), or commercial mobile radio service (CMRS).”
The R&O is detailed in its discussion of each of its actions and addresses certain requests it declined to incorporate. Therefore, a close read is warranted for those potentially affected by its obligations and opportunities. With that said, the highlights of the R&O follow.
Affirmative Obligations And Policing – The Commission requires “every voice service provider” to: (1) “respond to traceback requests from the Commission, civil and criminal law enforcement, and the Consortium”; (2) “take steps to effectively mitigate illegal traffic when it receives actual written notice of such traffic from the Commission;” and (3) “implement affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls.”
- Respond To Traceback Requests – All voice service providers, “regardless of their position in the network and their implementation of STIR/SHAKEN,” must respond in full and timely (“as quickly as possible”) fashion to traceback requests from the “Commission, civil and criminal law enforcement, and the Traceback Consortium” established pursuant to the TRACED Act. Law enforcement entities are encouraged, but not required, to make their requests through the traceback Consortium; the FCC will take action in cases of a “pattern of non-compliance” with response requirements. Further, “voice service providers need only respond to traceback requests from the Commission and law enforcement when such requests are made consistent with other legal and regulatory requirements.”
- Mitigation Requirements – The R&O requires the Commission’s Enforcement Bureau to “identify suspected illegal calls and provide written notice to voice service providers.” In response, the voice service provider must “promptly investigate the traffic identified in the notice and either take steps to effectively mitigate the identified traffic” using steps outlined in the R&O, or “respond to the Commission that the service provider has a reasonable basis for concluding that the identified calls are not illegal.” The FCC emphasizes that “a ‘reasonable basis for concluding that the calls are not illegal’ requires sufficient due diligence on the part of the voice service provider making such a determination.” Only the Commission is authorized to provide the notice to the voice service providers. Further, the R&O declines to “prescribe specific steps that voice service providers must take to comply.”
- Affirmative Effective Measures – While not dictating specific, defined steps, the R&O requires that “all originating voice service providers know their customers and exercise due diligence in ensuring that their services are not used to originate illegal traffic.” However, the R&O recommends “that voice service providers exercise caution in granting access to high-volume origination services, to ensure that bad actors do not abuse such services.”
Expanding The Safe Harbor/Disclosure – The R&O authorizes terminating voice service providers to “block calls at the network level, without consumer opt in or opt out, if that blocking is based on reasonable analytics that incorporate caller ID authentication information designed to identify calls and call patterns that are highly likely to be illegal.” Among other things, the blocking must be managed “with human oversight and network monitoring sufficient to ensure” that it is working as intended, including “a process to reasonably determine that the particular call pattern is highly likely to be illegal prior to blocking calls.” The FCC does not “prescribe the specific steps of this process” expects “it will include steps designed to find out whether the calls that are part of the call pattern in question are highly likely to be illegal such as dialing the telephone number from which the apparently illegal calls purportedly originate; reviewing complaint data about calls from the source; or contacting the originating voice service provider.” Further, a “terminating voice service provider must disclose to consumers that it is engaging in such blocking so that consumers are fully aware of it.” The FCC declines to extend the safe harbor to cover “the inadvertent or unintended misidentification of the level of trust for particular calls.”
Enhanced Transparency and Redress – On this issue, the FCC sets three overall requirements for voice service providers. Before addressing each in detail, the R&O expressly states that the FCC expects “voice service providers to satisfy those requirements, whether or not they use a third party” to implement call blocking.
- Notification – “[T]erminating voice service providers that block calls …[must] immediately notify the caller that the call has been blocked by sending either a Session Initiation Protocol (SIP) or ISDN User Part (ISUP) response code, as appropriate,” and… all voice service providers in the call path…[must] transmit these codes to the origination point.” NOTE: the R&O sets January 1, 2022 as the compliance date for meeting this requirement.
- Disclose A List Of Blocked Calls To Subscriber – “[T]erminating voice service providers that block calls on an opt-in or opt-out basis… [must] disclose to their subscribers a list of blocked calls upon [the subscriber’s] request.” The R&O provides that the list should contain the “calling number and the date and time of the call;” it must be provided without charge to the subscriber. The Commission declines to require calls blocked without consumer consent and call labeling concerns on this list. The agency also does not specify how the list must be delivered to the subscriber, but the provider must respond to any request for the list within 3 business days and records of blocked calls must be maintained for 28 days.
- Disputes of Blocking – “[W]hen a calling party disputes whether blocking its calls is appropriate,… terminating voice service providers …[must] provide a status update to the party that filed the dispute within 24 hours.” This requirement applies to disputes received through the providers designated point of contact. The FCC declines to set specific dispute resolution deadlines for disputes, noting that callers may file complaints or a petition with the Commission. Further, the R&) does not impose data recording or record keeping requirements regarding blocking complaints.
- Point Of Contact – Finally, “the point of contact which terminating voice service providers have established to handle blocking disputes [must] also handle contacts from callers that are adversely affected by information provided by caller ID authentication seeking to verify the authenticity of their calls.” The voice service provider “must make its contact information available on its website.”
- No Redress Requirements For Labeling – The FCC declines to “extend redress mechanisms to erroneous call labeling at this time.” The agency does not agree with those who argued that call labeling was the equivalent of call blocking and encouraged “voice service providers and their analytics partners to work in good faith with callers to avoid erroneous labeling so consumers can better decide whether to answer a call.”
The new requirements primarily are incorporated into Part 64 of the FCC’s Rules at Section 1200(k).
With the exception of those provisions requiring approval under the Paperwork Reduction Act and the notification requirement set forth above, the R&O prescribes that they take effect 30 days after publication in the Federal Register.