Federal Communications Commission Update – February 2019

Comments Sought on TCPA “Dual Purpose” Calls

Petitioner, SGS North America (SGS), asked the FCC to clarify the meaning of telemarketing and dual purpose calls. SGS contracts with automobile lessors to schedule inspections of leased vehicles to assess their condition near the end of a lease. SGS contacts lessees with a prerecorded message advising them to bring the vehicle in for an inspection. It does not sell any goods or services to the lessees who receive the message. SGS seeks a declaratory ruling that the prior express written consent requirement applies only if it advertises the commercial availability or quality of any property, good, or service, or encourages the purchase or rental of, or investment in, property, goods, or services within the four corners of the communication itself.

FCC and Carriers Move Forward on SHAKEN/STIR Caller ID Rules

In November 2018, Chairman Pai called for telecommunications carriers to develop plans to authenticate caller ID in 2019. Many large carriers have submitted their plans, which involve a complex digital verification framework between the carriers that confirm the caller’s identity. In January, T-Mobile announced that it has implemented SHAKEN/STIR in a limited form with further implementation to follow. Other carriers have announced intentions to roll-out SHAKEN/STIR in 2019. This is one of several programs by regulators to combat caller ID spoofing.

FCC Issues First Ever Report on Illegal Robocalls

Chairman Pai reports that fighting illegal robocalls and spoofing are the FCC’s top consumer protection priority. Emphasizing that it is using “every tool in our toolbox” to address illegal robocalls, the FCC is employing a combination of policy initiatives, aggressive enforcement, and organizational partnerships to address this issue. Policy changes include providers’ call blocking programs, consumer-driven call blocking services, caller ID authentication, and development of the reassigned number database. The FCC is advocating for industry-wide cooperation with regulators in the call “traceback” process that would allow agencies to identify the source of calls and texts. Finally, the FCC is working with the AARP and consumer groups at townhall meetings and expos to discuss concerns about robocalls. Going forward, the FCC plans to enhance call blocking capabilities without blocking legal calls.

Implementation of RAY BAUM’S Act

The 2009 Truth in Caller ID Act made it unlawful for “to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value.” Last year, as part of the RAY BAUM’S Act, Congress expanded that prohibition to (1) reach spoofing activities directed at consumers in the U.S. from actors outside the U.S.; and (2) extend its reach to caller ID spoofing using alternative voice and text messaging services.

On February 15, 2019, the FCC issued a Notice of Proposed Rulemaking in which it tracks the language of RAY BAUM’S Act. Although the FCC considers the language of the Act relevant to non-U.S. calls to be clear, it seeks comment on nuances that should be considered about overseas calls, the definition of text messages, and similar changes.

Marks v. Crunch Settles Before Supreme Court Can Weigh-In; Ninth Circuit Bound by Expansive “ATDS” Interpretation

The parties in Marks v. Crunch San Diego settled before the U.S. Supreme Court could decide whether the Ninth Circuit properly found that the TCPA’s regulation of automatic telephone dialing systems includes “a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”

Like many cases, Marks was stayed until the D.C. Circuit decided the ACA Int’l v. FCC case which challenged the FCC’s expansive definition of ATDS.  After the Circuit Court issued its Opinion in ACA, several federal district and circuit courts struggled to determine the scope of the term ATDS. In Marks, however, the Ninth Circuit held that ATDS includes all equipment that “engages in automatic dialing,” not just “equipment that operate[s] without any human oversight or control.” This is the most expansive definition post-ACA and it conflicts with decisions from the Second and Third Circuits which found that the statutory definition of ATDS covers equipment that can generate random or sequential numbers and dial them. Because the parties have settled Marks, the Ninth Circuit’s decision remains the “law of the land” for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.