FCC Releases Robocall R&O, FNPRM, and NOI

On May 19, 2023, the FCC released the Seventh Report and Order, Eight Further Notice of Proposed Rulemaking, and Third Notice of Inquiry extending call blocking requirements to certain providers and seeking comment on additional actions the FCC can take to combat illegal robocalls.  The item was adopted at the May Open Meeting.

      I. Report and Order

In the Report and Order, the FCC extends several of the call blocking requirements adopted in the Gateway Provider Order and Further Notice to other voice service providers in the call path.  Specifically, the FCC adopts the following:

  1. 24-Hour Traceback Requirement applied to All Voice Service Providers – the FCC requires all voice service providers, regardless of their position in the call path, to fully respond to traceback requests from the FCC, civil and criminal law enforcement, and the industry traceback consortium within 24 hours of receipt of such a request.  This modifies the prior requirement adopted in December 2020 that voice service providers respond to traceback requests “fully and in a timely manner” which the Commission explained should mean “within a few hours, and certainly in less than 24 hours absent extenuating circumstances.”
  2. Mandatory Blocking Following Commission Notification extended to Additional Providers – the FCC extends the requirement to block illegal traffic when notified by the Commission to originating providers.  The safe harbor adopted in the Gateway Provider Order protecting voice service providers that block lawful traffic as part of the requirement to block substantially similar traffic from liability is also extended to originating providers.  The FCC also clarifies that, while terminating and non-gateway intermediate providers are not generally required to block, they are required to respond and provide accurate information regarding the source from which they received the illegal traffic.  Further, the FCC requires all voice service providers immediately downstream from a bad-actor voice service provider that has failed to meet these obligations to also block all traffic from the identified provider when notified by the FCC that the upstream provider failed to meet its obligation to block illegal traffic or inform the FCC as to the source of the traffic.
  3. Know Your Upstream Provider applied to All Voice Service Providers – the FCC requires all voice service providers accepting traffic from an upstream provider to take steps to “know” that immediate upstream provider.  This means that every voice service provider is required to take reasonable and effective steps to ensure that the immediate upstream provider is not using it to carry or process a high volume of illegal traffic.  The FCC does not mandate specific, defined steps to meet this requirement; instead voice service providers have flexibility to determine the best approach for their networks, so long as the steps are effective.  The FCC does expect voice service providers to exercise due diligence before accepting traffic from an upstream provider and notes that providers may want to collect information such as the physical business location, contact persons, state or country of incorporation, the federal tax ID, and nature of the providers business, though such information may not be necessary or sufficient in all cases.  The FCC also encourages voice service providers to adopt contract terms that allow for termination and act upon said terms in the event that the upstream provider attempts to use the network to carry or process a high volume of illegal traffic.
  4. Updates the Robocall Mitigation Database Certification to Include Traceback Compliance – the FCC requires all voice service providers to provide a statement noting their commitment to respond to traceback requests within 24 hours in their Robocall Mitigation Certification.  Compliance with this requirement will be required 30 days after notice is published in the Federal Register that the new certification has received OMB approval.
  5. Declines to Adopt Other Proposals in the Record – the FCC declines to (1) further clarify its requirement for voice service providers to take affirmative, effective measures to prevent new and existing customers from using their network to originate illegal calls; (2) adopt a requirement that originating voice service providers ensure that customers originating non-conversational traffic only seek to originate lawful calls; (3) adopt a strict liability standard for an originating provider when its customer originates illegal calls; and (4) require that the industry make traceback information publicly available.
  6. Cost/Benefit Analysis – the FCC estimates the rules will account for another large share of the annual $13.5 billion minimum benefit and that the costs of implementing the requirements will be low, particularly as most voice service providers comply with FCC rules.

      II. Further Notice of Proposed Rulemaking

In the FNPRM, the FCC seeks comment on additional steps to ensure that all consumers have access to call blocking solutions, restore trust in caller ID, and hold voice service providers responsible for illegal traffic.  Specifically, the FCC proposes and seeks comment on the following:

  1. Requiring Opt-Out Analytics-Based Blocking of Calls that are Highly Likely to Be Illegal – the FCC proposes requiring terminating providers to offer analytics-based blocking of calls that are highly likely to be illegal on an opt-out basis without charge to consumers.  The FCC’s current rules permit but do not require such blocking.  The FCC believes this will better protect consumers from illegal calls.
  2. Requiring Blocking Based on a Reasonable Do-Not-Originate List – the FCC proposes requiring all voice service providers to block calls using a reasonable DNO list.  Voice service providers may use any DNO list, so long as it is reasonable and not so limited in scope that it leaves out obvious numbers that could be included with little effort.  The FCC proposes to limit the numbers that can be included on the list to invalid, unallocated, and unused numbers, as well as numbers for which the subscriber to the number has requested blocking.
  3. Strengthening the Requirements to Block Following Commission Notification – The FCC proposes requiring a terminating or non-gateway intermediate provider to block calls if that provider, upon receipt of a Notice of Suspected Illegal Traffic, cannot identify the upstream provider from which it received any or all of the calls.  The FCC also proposes to allow the Enforcement Bureau to direct a terminating or non-gateway intermediate provider that has received at least one prior Notice of Suspected Illegal Traffic to both block substantially similar traffic and identify the upstream provider from which it received the traffic.
  4. SIP Codes for Immediate Notification of Blocked Calls – the FCC seeks comment on which SIP Codes terminating providers with IP networks should be required to use to notify callers that calls have been blocked.  The FCC seeks comment on whether it should require use of the newly developed SIP Code 603+ (“Network Blocked”) for immediate notification, require use of SIP Code 608 (“Rejected”), or require use of SIP Code 603 (“Decline”).
  5. Providing Accurate Caller Name to Call Recipients – the FCC seeks comment on whether and how to provide accurate caller name information to call recipients when the terminating voice service provider displays an indication that the call received a-level attestation.
  6. Enforcement Against Voice Service Providers that Allow Customers to Originate Illegal Calls – the FCC proposes to authorize a base forfeiture of $11,000 for any voice service provider that fails to take affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls, including knowing its customers and exercising due diligence in ensuring its services are not used to originate illegal calls.  The FCC also proposes to authorize that the forfeiture be increased to the maximum forfeiture the rules allow to be imposed on non-common carriers and seeks comment on whether to adopt a similar forfeiture for failing to comply with the requirement to know your upstream provider.

     III. Notice of Inquiry

In the NOI the FCC seeks comment on information regarding the current state of technology for identifying and combatting illegal calls, as well as the current state of call labeling.  Specifically, the FCC seeks comment on:

  1. Technology for Fighting Illegal Calls – The FCC seeks comment on the tools voice service providers currently use to identify and combat illegal calls.  The FCC is particularly interested in the use of honeypots, and ways to leverage such technology more broadly.
  2. Call Labeling – the FCC seeks comment on the current state of call labeling, and whether there are steps the FCC can take to improve the availability and accuracy of such labels.
  3. Digital Equity and Inclusion – the FCC generally seeks comment on how their proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility.

Comments are due 30 days after the date of publication in the Federal Register.

Reply comments are due 60 days after the date of publication in the Federal Register.

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