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That is the only way to describe the FCC’s latest swing at protecting robocalls.
In the last couple of months we have seen two carriers bite the dust at the hands of the FCC–one killed for failing to update its robocall mitigation submission, and another killed for carrying marketing calls based on multi-vertical consent.
The latest FCC action–which you can read here Public Notice –is different. Although the FCC again directs carriers to stop accepting traffic, this time it is not focused on another carrier but, rather, on a PLATFORM–PhoneBurner–that was used to send messages on behalf of something called MV Realty.
When dialing platforms start getting called out BY NAME by the FCC everybody needs to pay attention. This is getting really serious.
So here’s the background according to the public notice (per usual I did not independently verify these facts, just reporting what the FCC says):
The USTelecom’s Industry Traceback Group (Traceback Consortium)8 traced a substantial volume of apparently unlawful telephone solicitation9 calls to PhoneBurner and MV Realty; the calls were placed to homeowners whose phone numbers were on the DNC Registry. In these calls, MV Realty operators offered homeowners one-time cash payments, purportedly in exchange for the homeowner granting MV Realty exclusive listing rights to sell the homeowner’s home at some future date.
Ok, so there’s the initial background. For the uninitiated, the Traceback Consortium is a group that accepts spam and scan complaints from various sources–like YouMail and other apps–and then researches those complaints by reaching out to carriers, who then have 24 hours to respond with information related to the traffic being investigated.
This lead to the FCC conducting an investigation, that apparently identified 11,949,374 calls made to DNC registered numbers by PhoneBurner and MV Realty. The Bureau found that 10,926,635 calls were placed to wireless numbers and1,022,739 calls were placed to landline phone numbers actively listed on the DNC Registry.
Ok. So calls were made to numbers on the DNC–that’s not illegal unless the calls were made without consent. But stay with me, because this is where it gets really interesting.
The FCC conducted a bit of an investigation here–interviewing former employees of MV Realty:
The Bureau’s investigation revealed that MV Realty frequently called consumers who repeatedly and affirmatively asked MV Realty to stop calling them. The Bureau spoke to former MV Realty employees who described how they were repeatedly asked by consumers to stop calling. In response to these requests, these employees marked the phone numbers as belonging to consumers who did not wish to be called. MV Realty failed to remove these homeowners from its calling list despite being notified by MV Realty’s own employees.
Notice, although the FCC identifies over 11MM calls to numbers on the National DNC, the former employees did not substantiate that calling to those numbers took place without consent. They only identified a failure to scrub the INTERNAL DNC. And there is no count of how many of those calls were noted anechtodally by the former employees.
Nonetheless, based upon hearsay statements of former (disgruntled?) employees that some unstated number of internal DNCs were not honored, the FCC has taken decisive action to shut down MV Realty’s traffic wholesale (more on that below.)
Due process concerns anyone?
But for PhoneBurner the problem is even more dire. The FCC essentially just determined the well-liked platform is a spoof-engine in disguise:
PhoneBurner’s software also enables its customers to make robocalls that include false or misleading caller ID—for example, by allowing its customers to match outbound calling number area codes to those of the recipients of their robocalls.
While we have seen courts confuse the idea of spoofing and local area code DIDs, this is the first time we’ve seen the FCC suggest that using convenient local numbers to facilitate callback from consumers is somehow misleading or illegal. This is obviously a huge deal for dialing platforms–almost all of which have the ability to permit callers to reach a caller at a REAL NUMBER assigned TO THAT CALLER from a local area code. It boggles the mind why the FCC would suggest the use of such CONSUMER FRIENDLY call back numbers would somehow be illegal. But.. there you go.
So now the meat–carriers are directed to take immediate action to stop this traffic or justify continuing to carry it, and this sounds burdensome as all get out:
Steps that Voice Service Providers Must Take Following this Public Notice. Upon receiving this Public Notice, voice service providers must promptly investigate the traffic identified in Attachment. Within14 days, each provider must report the results of its investigation to the Bureau including any steps that the provider has taken to effectively mitigate the identified traffic or explain why the provider has reasonably concluded that the identified calls were not illegal and what steps it took to reach that conclusion. In the event that any voice service provider fails to mitigate this traffic from PhoneBurner and MV Realty or fails to explain to the Bureau why it reasonably concluded this traffic to be legal, the Bureau may take additional enforcement action.
So the carriers have to either shut down MV and PhoneBurner or explain why they concluded–contrary to the FCC’s own investigation–that the calls were perfectly legal.
Hmmm… I wonder how that’s going to turn out?
The real problem for Phone Burner is that now all of its traffic is suddenly suspect. If you’re a carrier are you going to risk doing business with a company that was just the subject of a mitigation order? So too, if you’re a CALLER that uses Phone Burner and you hear about this action by the FCC to force carriers to stop traffic from your platform, how uneasy are you feeling right now?
Per usual, I am NOT saying that the FCC is wrong here. Maybe all of these calls were totally illegal and Phone Burner knew exactly what it was doing. But those facts aren’t presented in the order. The only facts we’re given is that some consumers complaint, some former employees said something about failing to process revocations and… boom… door slammed.
This all just feels so wildly one sided in a “but for the grace of God” sort of way. Did the FCC talk to MV Realty and get their side? Was there consent for the calls? Where did the leads come from? Did Phone Burner even know (or have reason to suspect) the calls were illegal (if they were) before getting blasted sooooo badly? Were the DIDs assigned to MV realty invalid? Was there snowshoing afoot?
So many unanswered questions.
And yet, although no one has been found guilty of anything in any court of law on the basis of competent evidence, a fairly well known dialer brand–Phone Burner– just got placed on life support.
I know the FCC feels like it needs to do more to protect consumers. And I support the mission overall, but gees I hope these shoot from the hip tactics aren’t taking out good companies with the bad. These are very serious matters with people’s reputations and livelihoods on the line. I hope that’s not lost on the Commission as these lopsided orders come out.
R.E.A.C.H. will be knocking on everyone’s door soon to help assure industry alignment in stopping unwanted calls so the Commission doesn’t have to keep pushing so hard on everyone. There is a better way. Let the good actors help consumers and let industry regulate itself and oust the bad guys and bad traffic. It CAN happen. And its our responsibility to make sure it does.