On Friday, March 27, 2020, the Commission released a Report and Order and Further Notice of Proposed Rulemaking (“Order” and “FNPRM”) in the Implementing Section 13(d) of the TRACED Act proceeding (EB Docket No. 20-22). The Order adopts rules, consistent with the Congressional requirement outlined in the TRACED Act, to establish a registration process for a single consortium that would conduct private-led traceback efforts of suspected unlawful robocalls. The FNPRM seeks comment on what rules, if any, are necessary to identify voice service providers that repeatedly originate large-scale unlawful robocall campaigns, and any obligations the Commission should impose on such providers to end those practices.

  • The Order will be effective 30 days after publication in the Federal Register.
  • Comments on the FNPRM are due 30 days after the date of publication in the Federal Register
  • Reply comments are due 45 days after the date of publication in the Federal Register.

Report and Order – The Order amends the Commission’s rules to establish a process to register a single consortium under the directive of the TRACED Act, which requires the Commission, no later than March 29, 2020, to issue rules establishing a registration process for the consortium. The Order generally adopts the rules proposed in the February 2020 Notice of Proposed Rulemaking, which sought comment on this registration process.

Registration Process – The Order requires the Enforcement Bureau (“Bureau”) to issue, no later than April 28th of each year, an annual public notice seeking registration of a single consortium that conducts private-led efforts to trace back the origin of suspected unlawful robocalls, with a registration deadline and instructions for interested entities.

  • Letters of Intent – Entities that plan to register as the consortium must submit a Letter of Intent, demonstrating the entity’s ability and ongoing efforts to manage and traceback unlawful robocalls. The Bureau is directed to review the Letters of Intent and to select the single registered consortium no later than 90 days after the deadline for Letters of Intent submissions. Entities submitting a Letter of Intent must also certify to their compliance with the TRACED Act and its requirements.
  • 2020 Registration Process – The Commission directs the Bureau to seek comment on any Letter of Intent submitted in response to the first annual notice and to set the filing date for Letters of Intent no sooner than 30 days after the rules are published in the Federal Register. The Bureau will have the flexibility to determine what, if any, additional processes may be necessary to ensure that it receives sufficient information to select the consortium.

Selection of the Registered Consortium – The Order sets forth a set of principles, rather than prescriptive directives, for the Bureau to use to select the registered consortium and ensure compliance with the TRACED Act. The Commission’s four principles for the consortium are as follows:

  1. The registered consortium must be a neutral third party and demonstrate how it will allow voice service providers to participate in an unbiased, non-discriminatory, and technology-neutral manner.
  2. The registered consortium must be a “competent manager” of the private-led efforts to trace back the origin of suspected unlawful robocalls, meaning that the entity is able to effectively and efficiently manage a private-led traceback process of suspected unlawful robocalls, and timely and successfully find the origin of these robocalls.
  3. The registered consortium must maintain, and conform its actions to, written best practices regarding the management of private-led efforts to trace back the origin of suspected unlawful robocalls and participation of voice service providers in such efforts. These written best practices must establish processes and criteria for determining how providers of voice services will participate in traceback efforts.
    • The Order does not mandate specific best practices, but suggests that these best practices should likely address, for example: (i) the participation of other voice service providers in private-led traceback efforts; (ii) how specific calls are selected for traceback; (iii) traceback information sharing; (iv) consortium governance; and (v) budget transparency, including voice service provider participation fees or costs.
  4. The registered consortium’s private-led traceback of suspected unlawful robocalls must focus on “fraudulent, abusive, or unlawful traffic.” A consortium could demonstrate compliance by adopting criteria that govern how calls are selected for traceback.

Further Notice of Proposed Rulemaking – The FNPRM seeks comment on what standard the consortium should use identify whether any voice service providers, specifically those subject to a delay of compliance, are repeatedly originating large-scale unlawful robocall campaigns, and on the scope and definitions of “large scale” and “unlawful robocall campaign.” The FNPRM also asks what actions the Commission should require of identified providers to ensure they do not continue to originate unlawful robocalls, such as any specific robocall mitigation practices or oversight of those practices, and how to ensure that these robocall mitigation requirements are not overly burdensome on identified providers.

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