telemarketing lawsOn March 23, 2018, the FCC and FTC hosted a joint forum to discuss the issue of robocalls. Consisting of three panels and remarks from key leadership of both agencies, the event marked a significant step in agency cooperation to mitigate consumer frustration from unwanted calls. The panels focused on three issues: (1) challenges facing consumers and industry; (2) recent regulatory and enforcement efforts; and (3) tools and solutions for consumers. FCC Chairman Ajit Pai and FTC Acting Chairman Maureen Ohlhausen delivered opening remarks, with FCC Commissioners Mignon Clyburn and Brendan Carr, as well as FTC Commissioner Terrell McSweeny, also speaking.

Panelists identified number spoofing as the biggest issue magnifying the robocall problem. As a result of spoofing, consumers have lost trust in answering the phone, leading to a significant rise in call completions not occurring. Telephone providers have attempted to combat the spoofing problem by screening calls, but there is skepticism as to the long-term viability of screening mechanisms for fear that robocallers will learn to circumvent screens and consumer trust might further erode due to the lack of transparency in what calls are being blocked. Businesses in particular have felt the frustration of lost consumer trust, and panelists claimed that legitimate business calls have declined by 20-30%. Representatives from the communications industry called for technology that would provide an intercept code for businesses to receive notice that their calls had been blocked, but stressed that transparency on the consumer side, too, was paramount.

The value of the joint policy forum was most prevalent on the panel discussing recent regulatory and enforcement efforts. Leadership from both agencies, along with a Senior Assistant Attorney General from Florida’s Office of the Attorney General, discussed the enforcement overlap and remaining gaps. On the discussion of avoiding penalizing “good” robocallers, Lois Greisman, Associate Director of the FTC’s Division of Marketing Practices, identified that the agency’s narrower definition of telemarketing helps avoid the false positive issue because it excludes many of the “good” robocallers. FCC leadership stated that prosecutorial discretion is the main tool they use to avoid targeting “good” robocallers. The panelists’ discussion on whether avatar calls for charitable donations constitute telemarketing highlighted a potential gap in the agencies’ enforcement plans. The Northern District of Illinois recently held that calls seeking charitable donations are not “telephone solicitations” actionable under the Telephone Consumer Protection Act (TCPA). However, the panelists’ discussion highlighted that FTC considers avatar calls for charitable donations to be telemarketing under the Telemarketing Sales Rule (TSR). The TCPA and TSR are supposed to be “harmonized,” yet comments from both agencies surrounding calls for charitable donations suggest that the FTC’s enforcement through the TSR has not been updated to reflect courts’ rulings addressing the applicability of the TCPA.

Discussions also focused on solutions, identifying that the SHAKEN (Signature-based Handling of Asserted information using toKENs) and STIR (Secure Telephone Identity Revisited) call authentication standards by themselves are not a solution. Instead, the panelists noted that the true value of these standards is to provide reliable information to the app developers and telecommunications providers to create effective tools. These standards, along with data sharing from both agencies, allow industry stakeholders to address the issue in real-time.

In that regard, the standards are likely to be seen as a success. Over 550 apps are currently available to help consumers curb illegal calls, and resources from the Cellular Telecommunication Industry Association (CTIA) and others are helping rank these apps to enable consumers to make a choice. Panelists touted the myriad potential tools as a positive, allowing consumers to choose a solution that fits their needs. Yet this optimism presumes that consumers should bear the cost of mitigating the problem, a refrain at odds with agency statements but one that seems to be the inevitable outcome of solution discussions. Even the industry-driven solution of call screening and blocking requires a heavy lift from consumers. Panelists also suggested routing suspect calls to voicemail as a potential solution to both the nuisance concerns and the false-positive issue of legitimate calls. Yet this, too, requires consumers to screen the content on their own and inevitably shoulder the cost of unwanted calls.

While the event was notable for the voices present and the solutions discussed, perhaps the most notable takeaway was what issues were absent: namely, the issue of reassigned numbers. Chairman Pai has previously taken on the reassigned numbers challenge, advocating for a comprehensive list of all reassigned numbers. All three panels at the joint forum were silent on this as a potential tool to combatting the robocall issue; however, the day before the forum, the FCC issued a second notice of proposed rulemaking in which it explicitly proposed making a reassigned list. It is significant that the vote was unanimous on the proposal, but Commissioner Jessica Rosenworcel in particular asserted that “this rulemaking takes only the smallest stab at a massive problem.” According to Commissioner Rosenworcel, “When it comes to robocalls, we can and should be doing so much more.”

Key takeaways from the joint forum are that the FTC and FCC are taking action against abusive robocallers, but that both agencies are relying on the communications industry, and inevitably, consumers, to step up and help craft solutions. Notably, the marketing industry was not present at this joint forum, and it appears that they are not being consulted on the robocall issue. While the FCC is still interested in developing a list of reassigned numbers, this idea is still in development and hasn’t yet become part of solution discussions.