Tag: fcc

TCPA Rules on Revoking Consent for Unwanted Robocalls and Robotexts Effective April 2025

On October 11, 2024, the Federal Communications Commission announced that the effective date for Telephone Consumer Protection Act (TCPA) rules on revoking consent for unwanted robocalls and robotexts is set for April 11, 2025.

On February 15, 2024, the FCC adopted the TCPA Consent Order in the above-captioned proceeding. In that rulemaking, the FCC adopted rules making it simpler for consumers to revoke consent to receive unwanted robocalls and robotexts. Callers and texters must honor these opt-out requests in a timely manner.

The TCPA Consent Order established that these rules would become effective six months following publication in the Federal Register that the Office of Management and Budget has completed its review of the modified information collection requirements under the Paperwork Reduction Act of 1995. OMB approved these modified information collection requirements on September 26, 2024.

On October 11, 2024, the FCC announced in the Federal Register that compliance with the amendments and new rules set forth in the TCPA Consent Order as contained in 47 CFR §§ 64.1200(a)(9)(i)(F), (10), (11) and (d)(3) is required as of April 11, 2025.

Background of the TCPA Rules on Revoking Consent for Unwanted Robocalls and Robotexts

The TCPA restricts robocalls and robotexts absent the prior express consent of the called party or a recognized exemption. The FCC has made clear that consumers have a right to decide which robocalls and robotexts they wish to receive by exercising their ability to grant or revoke consent to receive such calls and texts.

The FCC has now adopted new rules to strengthen the ability of consumers to decide which robocalls and robotexts they wish to receive, codified the FCC’s past guidance on consent to make these requirements easily accessible and apparent to callers and consumers, and closed purported loopholes that allow wireless providers to make robocalls and robotexts without the ability for the subscriber to opt out.

What is the Practical Impact of the TCPA Revocation Rules?

As previously discussed by FTC defense and telemarketing compliance attorney Richard B. Newman, in March 2024 the Federal Communications Commission announced that it adopted new rules and codified previously adopted protections that make it simpler for consumers to revoke consent to unwanted robocalls and robotexts (specifically, autodialed and/or artificial/ prerecorded voice calls and texts) while requiring that callers and texters honor these requests in a timely manner.

In pertinent part:

  • Revocation of prior express consent for autodialed, prerecorded or artificial voice calls (and autodialed texts) can be made in any reasonable manner (callers may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method).
  • Callers are required to honor do-not-call and consent revocation requests within a reasonable time not to exceed ten (10) business days of receipt.
  • Text senders are limited to a prompt one-time text message confirming a consumer’s request that no further text messages be sent under the TCPA (the longer the delay, the more difficult it will be to demonstrate that such a message falls within the original prior consent).
  • Revocation of consent applies only to those autodialed and/or artificial/prerecorded voice calls and texts for which consent is required.
  • A revocation to marketing messages precludes all further telephone calls or text messages unless an enumerated exemption exists.

Telemarketers and lead generators should consult with an experienced FTC defense lawyer to discuss the scope of the new rules and protections, including, but not limited to, the scope and applicability of a revocation for one purpose to other communication purposes.

© 2024 Hinch Newman LLP

by: Richard B. Newman of Hinch Newman LLP

For more news on FCC TCPA Regulations, visit the NLR Communications, Media, & Internet section.

FCC’s New Notice of Inquiry – Is This Big Brother’s Origin Story?

The FCC’s recent Notice of Proposed Rulemaking and Notice of Inquiry was released on August 8, 2024. While the proposed Rule is, deservedly, getting the most press, it’s important to pay attention to the Notice of Inquiry.

The part which is concerning to me is the FCC’s interest in “development and availability of technologies on either the device or network level that can: 1) detect incoming calls that are potentially fraudulent and/or AI-generated based on real-time analysis of voice call content; 2) alert consumers to the potential that such voice calls are fraudulent and/or AI-generated; and 3) potentially block future voice calls that can be identified as similar AI-generated or otherwise fraudulent voice calls based on analytics.” (emphasis mine)

The FCC also wants to know “what steps can the Commission take to encourage the development and deployment of these technologies…”

The FCC does note there are “significant privacy risks, insofar as they appear to rely on analysis and processing of the content of calls.” The FCC also wants comments on “what protections exist for non-malicious callers who have a legitimate privacy interest in not having the contents of their calls collected and processed by unknown third parties?”

So, the Federal Communications Commission wants to monitor the CONTENT of voice calls. In real-time. On your device.

That’s not a problem for anyone else?

Sure, robocalls are bad. There are scams on robocalls.

But, are robocalls so bad that we need real-time monitoring of voice call content?

At what point, did we throw the Fourth Amendment out of the window and to prevent what? Phone calls??

The basic premise of the Fourth Amendment is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” I’m not sure how we get more arbitrary than “this incoming call is a fraud” versus “this incoming call is not a fraud”.

So, maybe you consent to this real-time monitoring. Sure, ok. But, can you actually give informed consent to what would happen with this monitoring?

Let me give you three examples of “pre-recorded calls” that the real-time monitoring could overhear to determine if the “voice calls are fraudulent and/or AI-generated”:

  1. Your phone rings. It’s a prerecorded call from Planned Parenthood confirming your appointment for tomorrow.
  2. Your phone rings. It’s an artificial voice recording from your lawyer’s office telling you that your criminal trial is tomorrow.
  3. Your phone rings. It’s the local jewelry store saying your ring is repaired and ready to be picked up.

Those are basic examples, but for them to someone to “detect incoming calls that are potentially fraudulent and/or AI-generated based on real-time analysis of voice call content”, those calls have to be monitored in real-time. And stored somewhere. Maybe on your device. Maybe by a third-party in their cloud.

Maybe you trust Apple with that info. But, do you trust someone who comes up with fraudulent monitoring software that would harvest that data? How do you know you should trust that party?

Or you trust Google. Surely, Google wouldn’t use your personal data. Surely, they would not use your phone call history to sell ads.

And that becomes data a third-party can use. For ads. For political messaging. For profiling.

Yes, this is extremely conspiratorial. But, that doesn’t mean your data is not valuable. And where there is valuable data, there are people willing to exploit it.

Robocalls are a problem. And there are some legitimate businesses doing great things with fraud detection monitoring. But, a real-time monitoring edict from the government is not the solution. As an industry, we can be smarter on how we handle this.

© 2024 Troutman Amin, LLP
For more on the FCC, visit the NLR Communications Media Internet section

Confused About the FCC’s New One-to-One Consent Rules– You’re Not Alone. Here Are Some FAQs Answered For YOU!

Heard a lot about what folks are concerned about in the industry. Still seems to be a lot of confusion about it. So let me help with some answers to critical questions.

None of this is legal advice. Absolutely critical you hire a lawyer–AND A GOOD ONE–to assist you here. But this should help orient.

What is the new FCC One-to-One Ruling?

The FCC’s one-to-one ruling is a new federal regulation that alters the TCPA’s express written consent definition in a manner that requires consumers to select each “seller”–that is the ultimate good or service provider–the consumer chooses to receive calls from individually.

The ruling also limits the scope of consent to matters “logically and topically” related to the transaction that lead to consent.

Under the TCPA express written consent is required for any call that is made using regulated technology, which includes autodialers (ATDS), prerecorded or artificial voice calls, AI voice calls, and any form of outbound IVR or voicemail technology (including ringless) using prerecorded or artifical voice messages.

Why Does the FCC’s New One-to-One Ruling Matter?

Currently online webforms and comparison shopping websites are used to generate “leads” for direct to consumer marketers, insurance agents, real estate agents, and product sellers in numerous verticals.

Millions of leads a month are sold by tens of thousands of lead generation websites, leading to hundreds of millions of regulated marketing calls by businesses that rely on these websites to provide “leads”–consumers interested in hearing about their goods or services.

Prior to the new one-to-one ruling website operators were free to include partner pages that linked thousands of companies the consumer might be providing consent to receive calls from. And fine-print disclosures might allow a consumer to receive calls from business selling products unrelated to the consumer’s request. (For instance a website offering information about a home for sale might include fine print allowing the consumer’s data to be sold to a mortgage lender or insurance broker to receive calls.)

The new one-to-one rule stop these practices and requires website operators to specifically identify each good or service provider that might be contacting the consumer and requires the consumer to select each such provider on a one by one basis in order for consent to be valid.

Will the FCC’s One-to-One Ruling Impact Me?

If you are buying or selling leads, YES this ruling will effect you.

If you are a BPO or call center that relies on leads– YES this ruling will effect you.

If you are a CPaaS or communication platform–YES this ruling will effect you.

If you are a telecom carrier–YES this ruling will effect you.

If you are lead gen platform or service provider–YES this ruling will effect you.

If you generate first-party leads–Yes this ruling will effect you.

When Does the Rule Go Into Effect?

The ruling applies to all calls made in reliance on leads beginning January 27, 2025.

However, the ruling applies regardless of the date the lead was generated. So compliance efforts need to begin early so as to assure a pipeline of available leads to contact on that date.

In other words, all leads NOT in compliance with the FCC’s one-to-one rule CANNOT be called beginning January 27, 2025.

What Do I have to Do to Comply?

Three things:

i) Comply with the rather complex, but navigable new one-to-one rule paradigm. (The Troutman Amin Fifteen is a handy checklist to assist you);

ii) Assure the lead is being captured in a manner that is “logically and topically” related to the calls that will be placed; and

iii) Assure the caller has possession of the consent record before the call is made.

© 2024 Troutman Amin, LLP
For more news on FCC Consent Regulations, visit the NLR Communications, Media, & Internet section.

FCC Puts Another Carrier On Notice with Cease and Desist Letter

If you haven’t already figured it out, the FCC is serious about carriers and providers not carrying robocalls.

The FCC sent a cease and desist letter to DigitalIPvoice informing them of the need to investigate suspected traffic. The FCC reminded them that failure to comply with the letter “may result in downstream voice service providers permanently blocking all of DigitalIPvoice’s traffic”.

For background, DigitalIPvoice is a gateway provider meaning they accept calls directly from foreign originating or intermediate providers. The Industry Traceback Group (ITG) investigated some questionable traffic back in December and identified DigitalIPvoice as the gateway provider for some of the calls. ITG informed DigitalIPvoice and “DigitialIPVoice did not dispute that the calls were illegal.”

This is problematic because as the FCC states “gateway providers that transmit illegal robocall traffic face serious consequences, including blocking by downstream providers of all of the provider’s traffic.”

Emphasis in original. Yes. The FCC sent that in BOLD to DigitalIPvoice. I love aggressive formatting choices.

The FCC then gave DigitalIPvoice steps to take to mitigate the calls in response to this notice. They have to investigate the traffic and then block identified traffic and report back to the FCC and the ITG on the outcome of the investigation.

The whole letter is worth reading but a few points for voice service providers and gateway providers:

  1. You have to know who your customers are and what they are doing on your network. The FCC is requiring voice service providers and gateway providers to include KYC in their robocall mitigation plans.
  2. You have to work with the ITG. You have to have a traceback policy and procedures. All traceback requests have to be treated as a P0 priority.
  3. You have to be able to trace the traffic you are handling. From beginning to end.

The FCC is going after robocalls hard. Protect yourself by understanding what is going to be required of your network.

Keeping you in the loop.

© 2024 Troutman Amin, LLP
by: John H. Henson of Troutman Amin, LLP
For more news on FCC Regulations, visit the NLR Communications, Media & Internet section.

FCC Updated Data Breach Notification Rules Go into Effect Despite Challenges

On March 13, 2024, the Federal Communications Commission’s updates to the FCC data breach notification rules (the “Rules”) went into effect. They were adopted in December 2023 pursuant to an FCC Report and Order (the “Order”).

The Rules went into effect despite challenges brought in the United States Court of Appeals for the Sixth Circuit. Two trade groups, the Ohio Telecom Association and the Texas Association of Business, petitioned the United States Court of Appeals for the Sixth Circuit and Fifth Circuit, respectively, to vacate the FCC’s Order modifying the Rules. The Order was published in the Federal Register on February 12, 2024, and the petitions were filed shortly thereafter. The challenges, which the United States Panel on Multidistrict Litigation consolidated to the Sixth Circuit, argue that the Rules exceed the FCC’s authority and are arbitrary and capricious. The Order addresses the argument that the Rules are “substantially the same” as breach rules nullified by Congress in 2017. The challenges, however, have not progressed since the Rules went into effect.

Read our previous blog post to learn more about the Rules.

Listen to this post

Copyright © 2024, Hunton Andrews Kurth LLP. All Rights Reserved.
For more news on FCC Data Breach Notification Rules, visit the NLR Communications, Media & Internet section.

FCC Adopts Updated Data Breach Notification Rules

On December 13, 2023, the Federal Communications Commission (FCC) voted to update its 16-year old data breach notification rules (the “Rules”). Pursuant to the FCC update, providers of telecommunications, Voice over Internet Protocol (VoIP) and telecommunications relay services (TRS) are now required to notify the FCC of a data breach, in addition to existing obligations to notify affected customers, the FBI and the U.S. Secret Service.

The updated Rules introduce a new customer notification timing requirement, requiring notice of a data breach to affected customers without unreasonable delay after notification to the FCC and law enforcement agencies, and in no case more than 30 days after the reasonable determination of a breach. The new Rules also expand the definition of “breach” to include “inadvertent access, use, or disclosure of customer information, except in those cases where such information is acquired in good faith by an employee or agent of a carrier or TRS provider, and such information is not used improperly or further disclosed.” The updated Rules further introduce a harm threshold, whereby customer notification is not required if a carrier or TRS provider can “reasonably determine that no harm to customers is reasonably likely to occur as a result of the breach,” or where the breach solely involves encrypted data and the encryption key was not affected.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.
For more news on Updated Data Breach Notification Rules, visit the NLR Communications, Media & Internet section.

The FCC Approves an NOI to Dive Deeper into AI and its Effects on Robocalls and Robotexts

AI is on the tip of everyone’s tongue it seems these days. The Dame brought you a recap of President Biden’s orders addressing AI at the beginning of the month. This morning at the FCC’s open meeting they were presented with a request for a Notice of Inquiry (NOI) to gather additional information about the benefits and harms of artificial intelligence and its use alongside “robocall and robotext”. The following five areas of interest are as follows:

  • First, the NOI seeks, on whether and if so how the commission should define AI technologies for purposes of the inquiry this includes particular uses of AI technologies that are relevant to the commission’s statutory response abilities under the TCPA, which protects consumers from nonemergency calls and texts using an autodialer or containing an artificial or prerecorded voice.
  • Second, the NOI seeks comment on how technologies may impact consumers who receive robocalls and robotexts including any potential benefits and risks that the emerging technologies may create. Specifically, the NOI seeks information on how these technologies may alter the functioning of the existing regulatory framework so that the commission may formulate policies that benefit consumers by ensuring they continue to receive privacy protections under the TCPA.
  • Third, the NOI seeks comment on whether it is necessary or possible to determine at this point whether future types of AI technologies may fall within the TCPA’s existing prohibitions on autodial calls or texts and artificial or prerecorded voice messages.
  • Fourth, NOI seeks comment on whether the commission should consider ways to verify the authenticity and legitimately generate AI voice or text content from trusted sources such as through the use of watermarks, certificates, labels, signatures, or other forms of labels when callers rely on AI technology to generate content. This may include, for example, emulating a human voice on a robocall or creating content in a text message.
  • Lastly, seeks comment on what next steps the commission should consider to further the inquiry.

While all the commissioners voted to approve the NOI they did share a few insightful comments. Commissioner Carr stated “ If AI can combat illegal robocalls, I’m all for it” but he also expressed that he does “…worry that the path we are heading down is going to be overly prescriptive” and suggests “…Let’s put some common-sense guardrails in place, but let’s not be so prescriptive and so heavy-handed on the front end that we end up benefiting large incumbents in the space because they can deal with the regulatory frameworks and stifling the smaller innovation to come.”

Commissioner Starks shared “I, for one, believe this intersectionality is clinical because the future of AI remains uncertain, one thing is clear — it has the potential to impact if not transform every aspect of American life, and because of that potential, each part of our government bears responsibility to better understand the risks, opportunities within its mandate, while being mindful of the limits of its expertise, experience, and authority. In this era of rapid technological change, we must collaborate, lean into our expertise across agencies to best serve our citizens and consumers.” Commissioner Starks seemed to be particularly focused on AI’s ability to facilitate bad actors in schemes like voice cloning and how the FCC can implement safeguards against this type of behavior.

“AI technologies can bring new challenges and opportunities. responsible and ethical implementation of AI technologies is crucial to strike a balance, ensuring that the benefits of AI are harnessed to protect consumers from harm rather than amplifying the risks in increasing the digital landscape” Commissioner Gomez shared.

Finally, the topic around the AI NOI wrapped up with Chairwoman Rosenworcel commenting “… I think we make a mistake if we only focus on the potential for harm. We needed to equally focus on how artificial intelligence can radically improve the tools we have today to block unwanted robocalls and robotexts. We are talking about technology that can see patterns in our network traffic, unlike anything we have today. They can lead to the development of analytic tools that are exponentially better at finding fraud before it reaches us at home. Used at scale, we cannot only stop this junk, we can use it to increase trust in our networks. We are asking how artificial intelligence is being used right now to recognize patterns in network traffic and how it can be used in the future. We know the risks this technology involves but we also want to harness the benefits.”

© 2023 Troutman Amin, LLP
For more news on AI and its Impact on Robocalls and Robotexts, visit the NLR Communications, Media & Internet section.

What’s New in 5G – February 2023

The next-generation of wireless technologies – known as 5G – is expected to revolutionize business and consumer connectivity, offering network speeds that are up to 100 times faster than 4G LTE, reducing latency to nearly zero, and allowing networks to handle 100 times the number of connected devices, enabling the “Internet of Things.”  Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools it needs to maintain U.S. leadership in commercial 5G deployments.  This blog provides monthly updates on FCC actions and Congressional efforts to win the race to 5G.

Regulatory Actions and Initiatives

Spectrum

  • The FCC grants relief to a 600 MHz licensee serving Tribal Nations, giving it more time to complete and deploy its wireless network.

    • On January 4, 2023, the FCC’s Wireless Telecommunications Bureau (“WTB”) released an Order granting a third request by Pine Cellular Phones, Inc. (“Pine Cellular”) to extend its construction deadline for one of its 600 MHz licenses by one year from January 9, 2023 to January 9, 2024.  In 2019, Pine Cellular was a winning bidder in the Broadcast Incentive Auction (Auction No. 1002) of two 600 MHz licenses.  After the licenses were awarded, the FCC prohibited the use of funding from the Universal Service Fund for equipment and services deemed to pose a national security risk.  Pine Cellular planned to rely on that now-prohibited equipment to meet its construction requirement, but it has since been unable to acquire and install compliant equipment due, in part, to global supply chain issues.  The WTB granted Pine Cellular’s request because it recognized that the only way for Pine Cellular to fulfill its construction requirement is to remove and replace all prohibited equipment in its network and that termination of the license would not facilitate the provision of wireless broadband service, particularly to the Choctaw Nation, which is covered by Pine Cellular’s license.

  • The FCC grants additional licenses for spectrum in the 2.5 GHz band for commercial wireless services.

    • The WTB released a Public Notice on January 5, 2023, announcing the grant of four additional licenses for spectrum in the 2.5 GHz band, the auction for which concluded on August 29, 2022.  A list of the licenses, sorted by licensee, is available here.  And list of the same licenses, sorted by market, is available here.

  • The FCC takes further action to enable commercial operations through spectrum sharing in the 3.5 GHz band.

    • On January 10, 2023, the WTB and Office of Engineering and Technology (“OET”) released a Public Notice approving the new Environmental Sensing Capability (“ESC”) sensor deployment and coverage plans of Federated Wireless in the 3.5 GHz band.  Federated Wireless is now authorized to operate its ESC sensors to protect federal incumbents in Alaska and must, among other things, operate in conjunction with at least one Spectrum Access System (“SAS”), which manages non-federal access to the 3.5 GHz band, that has been approved for commercial deployment.

    • In addition, the WTB and OET released a Public Notice on January 12, 2023, certifying that the SAS operated by RED Technologies SAS (“RED”) has satisfied the FCC’s testing requirements and been approved to begin its initial commercial deployment (“ICD”), subject to certain conditions.  After RED operates its ICD, it is required to submit a report, and assuming that the report is satisfactory, RED will then receive authorization to operate for a five-year term.

  • The FCC revises its framework for making public safety spectrum in the 4.9 GHz band available for commercial wireless services.

    • On January 18, 2023, the FCC released an Order and Further Notice of Proposed Rulemaking establishing rules that provide for a nationwide Band Manager for public safety operations in the 4940-4990 MHz (“4.9 GHz”) band.  The Order replaces the previous framework for the 4.9 GHz band, which allowed states to lease the spectrum to third parties, including commercial entities, through a designated statewide lessor.  The new framework will allow the Band Manager to coordinate all use of the spectrum nationwide, including by making it available for secondary, non-public safety use – such as commercial 5G wireless services – by allowing non-public safety entities to lease unused 4.9 GHz band spectrum.  The Further Notice seeks comment on implementing the new leasing framework and selecting the Band Manager.  Comments and reply comments on the Further Notice will be due 30 days and 60 days, respectively, after publication in the Federal Register.

Other Agency Actions

  • The Federal Aviation Administration proposes requirements to help foster coexistence between 5G operations in the C-band and aircraft relying on radio altimeters.

    • On January 22, 2023, a Notice of Proposed Rulemaking issued by the Federal Aviation Administration (“FAA”) was published in the Federal Register.  The Notice proposes to update the FAA’s existing Airworthiness Directive (“AD”) regarding the coexistence of licensees of spectrum in the 3.7-4.2 GHz band (“C-band”) and radio altimeters.  Specifically, the FAA proposes interference tolerance requirements for radio altimeters and requirements that all aircraft operating under its rules meet power spectral density requirements to operate in the contiguous U.S. after February 2, 2024.  The FAA has determined that radio altimeter tolerant airplanes will not experience unsafe conditions at any airport identified by the FAA as a 5G market.  It has also determined that any 5G C-band provider that maintains the mitigated actions, which are based on the power levels to which Verizon and AT&T previously agreed, will not have an effect on the safety of transport and commuter airplanes with radio altimeters that meet the interference tolerance requirements.  The FAA will assess changes in the agreed-upon power levels.  Comments on the FAA’s proposals are due February 10, 2023.

  • The Department of Defense seeks comment on developing a spectrum roadmap.

    • On January 4, 2023, the Department of Defense (“DoD”) released a Request for Information seeking input to support the development of a Next-Generation Electromagnetic Spectrum Strategic Roadmap, which Congress requested of DoD in a June 2022 letter.  Among other things, DoD requests input on its ability to use commercial systems for its operations and spectrum sharing.  The deadline for providing input is February 10, 2023 at 2:00 pm ET.

5G Networks and Equipment

  • The FCC reminds rip-and-replace funding recipients of their reporting obligations.

    • On January 11, 2023, the FCC’s Wireline Competition Bureau released a Public Notice reminding parties that receive funding from the FCC’s Reimbursement Program to remove and replace equipment that poses a national security risk of their obligation to file their Reimbursement Program spending reports.  The spending reports, which, among other things, must include a detailed accounting of the covered equipment and services that have been removed and replaced, are due by February 10, 2023.

Article By Angela Y. Kung and Christen B’anca Glenn of Mintz

For more data privacy and cybersecurity legal news, click here to visit the National Law Review.

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

911 Network Reliability Deadline Approaching

Earlier this month, the FCC announced that its 2022 911 Reliability Certification System is now open for Covered 911 Service Providers to file annual reliability certifications.  The filings are due on October 17, 2022.  Failure to submit the certification may result in FCC enforcement action.

Background

In 2013, the FCC adopted rules aimed at improving the reliability and redundancy of the nation’s 911 network.  Those rules require Covered 911 Service Providers (“C9SP”) to take steps that promote reliable 911 service with respect to three network elements: circuit auditing, central-office backup power, and diverse network monitoring.  The Commission identified these three network elements as vulnerabilities following a derecho storm in 2012 that significantly impacted 911 service along the eastern seaboard.

Applicability. The rules apply to all C9SPs, which are defined as any entity that provides 911, E911, or NG911 capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI), or the functional equivalent of those capabilities, directly to a public safety answering point (PSAP).

Certification. The rules require C9SPs to certify annually that they have met the FCC’s safe harbor provisions for each of these elements or have taken reasonable alternative measures in lieu of those safe harbor protections.  The certification must be made under penalty of perjury by a corporate officer with supervisory and budgetary authority over network operations.

In 2018 and 2020, the FCC sought comment on changes to the 911 reliability certification rules, but the rules have not yet been updated as a result of those proceedings.

Enforcement Against Noncompliant Providers

Last year, the FCC entered into eight consent decrees with Covered 911 Service Providers that failed to submit their reliability certifications in 2019, 2020, or both.  A Consent Decree typically requires the recipient to admit it violated an FCC rule, pay a fine to the federal government, and implement a Compliance Plan to guard against future rule violations.  These Compliance Plans required the C9SPs to designate a compliance officer, establish new operating procedures, and develop and distribute a compliance manual to all employees.

Additionally, the providers were required to establish and implement a compliance training program, file periodic compliance reports with the FCC detailing the steps the provider has taken to comply with the 911 rules, and report any noncompliance with 911 rules within 15 days of discovering such noncompliance.

Looking Forward

C9SPs have about one month to confirm compliance with the reliability rules and submit a required certification.  Based on the FCC’s enforcement efforts last year, C9SPs would be well-advised to work diligently to meet this upcoming deadline.

Article By Wesley K. Wright and Liam Fulling of Keller and Heckman LLP.

For more communications and telecom legal news, click here to visit the National Law Review.

© 2022 Keller and Heckman LLP

NCLC Tells FCC “Callers can easily avoid making calls to telephone numbers that have been reassigned….” – But Is it That Simple?

The National Consumer Law Center is at it again.

In response to the Department of Health and Human Services’ recent letter to the FCC seeking clarity on whether the TCPA applies to texts it would like to make to alert Americans of certain medical benefits, the NCLC–an organization that nominally represents consumers, but really seems to represent the interests of the plaintiff’s bar–has filed a comment.

Unsurprisingly, the NCLC takes the position that HHS needs no relief. Government contractors are covered by the TCPA–it says–but the texts at issue in HHS’ letter are consented, so they’re fine. (Although it later clarifies that only “many” but not “all” of the enrollees whom HHS wishes to call have “probably” given their telephone numbers as part of written enrollment agreements–so perhaps not.)

Hmmmm. Feels like a trap. But we’ll ignore that for now.

The critical piece here though is what the NCLC–very powerful voice, for better or (often) worse–is telling the FCC about the effectiveness of the new Reassigned Number Database:

3. Callers can easily avoid making calls to telephone numbers that have been reassigned to someone other than the enrollee

A primary source of TCPA litigation risk has been calls inadvertently made to numbers that are no longer assigned to the person who provided consent. Courts have held the caller liable for making automated calls to a cell phone number that has been reassigned to someone other than the person who provided consent to be called.29

The Commission has implemented the Reassigned Number Database specifically to address that risk of liability, as well as to limit the number of unwanted robocalls:

The FCC’s Reassigned Numbers Database (RND) is designed to prevent a consumer from getting unwanted calls intended for someone who previously held their phone number. Callers can use the database to determine whether a telephone number may have been reassigned so they can avoid calling consumers who do not want to receive the calls. Callers that use the database can also reduce their potential Telephone Consumer Protection Act (TCPA) liability by avoiding inadvertent calls to consumers who have not given consent for the call.31

The database has been fully operational since November 1, 2021. It provides a means for callers to find out before making a call if the phone number has been reassigned. If the database wrongly indicates that the number has not been reassigned, so long as the caller has used the database correctly, no TCPA liability will apply for reaching the wrong party. 32 Thus, as long as HHS’s callers make use of this simple, readily available database, they can be confident that they will not be held liable for making calls to reassigned numbers.

While I steadfastly support both the creation and use of the RND, it also must be observed that there are myriad problems with the RND as it currently exists. Most importantly, the data sets in the RND are only comprehensive through October 1, 2021 and spotty back to February, 2021 (beyond which there are no records!)

So for folks like HHS–and servicers of mortgages, and retailers, and credit card companies–who want to reach customers who provided their contact information before 10/2021 or 2/2021 the RND is simply not helpful.

The NCLC’s over simplification of a critical issue is not surprising. They once told Congress that the TCPA is “Straightforward and Clear” after all.

Full comment here: NCLC Comments-c3

We’ll keep an eye on developments on HHS’ letter and all the FCC goings ons.

Article By Eric J. Troutman of Troutman Firm

For more TCPA and communications legal news, click here to visit the National Law Review.

© 2022 Troutman Firm