FCC Moves to Prevent Unwanted and Illegal Phone Calls and Texts

• The Federal Trade Commission (FTC) and Federal Communications Commission (FCC) are partnering in “Operation Stop Scam Calls,” a multijurisdictional effort to stop illegal telemarketing calls.
• Recent actions by the FCC expand robocall prevention efforts and step up enforcement of its rules.
• Additionally, a Notice of Proposed Rulemaking seeks to clarify consumer consent requirements for receiving robocalls and text messages.

With an estimated four billion robocalls per month, it’s not surprising that unwanted and illegal robocalls are the FCC’s top consumer-protection priority, generating about 119,000 complaints in 2022 alone. Unwanted and illegal text messages—estimated at 225 billion in 2022—are increasingly prevalent and uniquely harmful to consumers by including legitimate-looking links designed to fool the recipient into providing personal and financial information. All of us experience on a daily basis the awkwardness of receiving a phone call or text message from an unknown telephone number and deciding whether to answer or reply. Unfortunately, some of these calls and texts are from bad actors and will result in fraud costing consumers billions of dollars.

Recent actions by the FCC are designed to decrease the number of unwanted and illegal phone calls and text messages that reach you. Below is a summary of recent developments in robocall and robotext regulation and open FCC proceedings that seek to eliminate harmful calls and texts. The FCC’s authority to regulate robocalls and robotexts stems from the Telephone Consumer Protection Act (TCPA), enacted in 1991, the Truth in Caller ID Act of 2009, enacted in 2010, and the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), enacted in 2019. The Federal Trade Commission (FTC), through its authority under the Federal Trade Commission Act and Telemarketing and Consumer Fraud and Abuse Prevention Act, also plays a role in robocall reduction and enforcement. The FTC administers the National Do Not Call Registry and has brought more than 150 enforcement actions for “Do Not Call,” robocall and spoofed caller ID violations. The FTC and FCC are partners in “Operation Stop Scam Calls”—a multi-agency, multi-jurisdictional effort by federal and state law enforcement entities to stop illegal telemarketing calls.

As part of its most recent robocall prevention efforts, the FCC has acted to, among other things:

• Require intermediate voice service providers to authenticate calls that are not authenticated by originating voice service providers;
• Require all voice service providers to take reasonable steps to mitigate illegal robocalls and file their mitigation plans in the Robocall Mitigation Database by a to-be-announced date ;
• Give its Enforcement Bureau enhanced tools to penalize bad actors, including the ability to revoke section 214 and other authorizations, licenses and certifications of repeat offenders and expel providers that commit certain rule violations from the Robocall Mitigation Database on an expedited timeline;
• Adopt a maximum $23,727 per-call penalty for failure to block illegal calls;
• Established STIR/SHAKEN obligations of satellite providers (STIR/SHAKEN is a framework adopted by the FCC and implemented by voice service providers to authenticate an originating caller’s right to use the telephone number displayed on caller ID and is meant to protect against spoofed robocalls);
• Expand to all voice service providers its requirements to respond to call traceback requests within 24 hours and block illegal traffic when notified by the FCC; and
• Expand to all voice service providers the “know your upstream provider” requirement.

The FCC also has open proceedings in which it proposes additional anti-robocall rules, including proposals to:

• Allow and regulate third-party caller ID authentication services;
• Require opt-out analytics-based blocking of likely illegal calls by all terminating voice service providers; and
• Require terminating voice service providers that display caller ID authentication information to also display the caller’s name.

FCC actions to reduce or eliminate unwanted or illegal text messages include:

• Requiring mobile wireless providers to block at the network level text messages that are highly likely to be illegal or that spoof invalid, unused or unallocated phone numbers, including texts purporting to be from numbers on a “Do Not Originate” list; and
• Requiring mobile wireless providers to establish a point of contact for message senders to report erroneously blocked texts.

FCC proposals to reduce or eliminate unwanted or illegal text messages include:

• Requiring mobile wireless providers to block messages if the provider is notified by the FCC that a sender is transmitting illegal texts;
• Extending the National Do Not Call Registry to include text messages; and
• Banning the practice of multiple marketers claiming consumer consent to send texts based on a single consent.

Prior Express Consent under the TCPA

For years, the TCPA has required a consumer’s prior express consent before receiving robocalls (the FCC later extended the consent requirement to include robotexts), unless the call or text meets an exception, such as a utility company contacting customers for an emergency purpose. The TCPA, however, does not specify how a consumer can grant or revoke consent and FCC guidance on consenting to robocalls and robotexts has not been formally reflected in its rules. To clarify these consent issues, the FCC in a recent Notice of Proposed Rulemaking proposes to: (1) ensure that revoking consent does not require using specific words or burdensome methods; (2) require that callers/texters act on do-not-call/text and consent revocation requests within 24 hours; (3) codify that consumers only need to revoke consent once to stop getting all robocalls and robotexts from a specific entity; and (4) allow wireless consumers the option to stop robocalls and robotexts from their own wireless service provider.

Recent Robocall and Robotext Enforcement Actions

With its increased scrutiny of robocalling and robotexting practices, the FCC has stepped up its enforcement against bad actors. In 2021, the FCC, using its Truth in Caller ID Act authority, issued a $225 million fine to a telemarketing company for making approximately one billion robocalls, many of them illegally spoofed, purporting to sell health insurance from well-known insurers. In early 2022, the FCC proposed a $45 million fine against a company that apparently made more than 500,000 unlawful robocalls claiming the annual health insurance enrollment period had been reopened due to the pandemic. Most recently, the FCC fined an illegal auto warranty scam robocalling operation nearly $300 million (the FCC’s largest-ever robocall fine) for making more than five billion illegal robocalls to more than 500 million phone numbers over three months. The FCC’s Enforcement Bureau continues to issue warnings to voice service providers alerting them to robocall traffic on their network and the potential for enforcement action if the offending traffic is not stopped, and the FCC’s Robocall Response Team works in concert with 47 states and the District of Columbia to investigate and stop robocalls.

Robocalls, Robotexts and Artificial Intelligence (AI)

Voice and messaging service providers, as well as consumers, should expect the FCC to explore ways to use artificial intelligence to combat robocalls and robotexts. At a recent FCC workshop titled “The Opportunities and Challenges of Artificial Intelligence for Communications Networks and Consumers,” FCC Chairwoman Jessica Rosenworcel spoke of AI’s “tremendous potential to expand and refine the analytics tools we have to block unwanted robocalls and robotexts,” noting that “[i]t could help restore our trust in networks” and “enhance our ability to see fraudulent traffic before it reaches you and stop it in its tracks.”

Voice and messaging service providers with questions about complying with the FCC’s current robocall and robotext rules or with questions about open FCC proceedings and proposed rules should contact a member of Pillsbury’s Communications Group.

A PDF version of this advisory can be found at Federal Communications Commission Acts to Prevent Unwanted and Illegal Phone Calls and Text Messages.