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Financial Services Law Insights and Observations


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  • FCC takes action against robocalls

    Agency Rule-Making & Guidance

    On August 5, the FCC announced a “fair and consistent” process for reviewing actions regarding a voice service provider’s ability to comply with the FCC’s anti-spoofing caller ID authentication rules. FCC rules require broad implementation of the STIR/SHAKEN caller ID authentication framework on voice service providers’ IP networks. As previously covered by InfoBytes, the STIR/SHAKEN framework addresses, among other things, “unlawful spoofing by confirming that a call actually comes from the number indicated in the Caller ID, or at least that the call entered the US network through a particular voice service provider or gateway.” Since June 30, all major phone companies are using the STIR/SHAKEN caller ID authentication framework in their IP networks (covered by InfoBytes here). To combat illegal spoofing, the STIR/SHAKEN standards are considered a common digital language utilized by phone networks, which facilitates valid information to be passed from provider to provider. The standards also allow most caller ID information to be verified for providers and third-party consumer protection services to use that information to inform call blocking or warning services to protect customers. According to the FCC, “[t]he widespread implementation of STIR/SHAKEN is a major step forward in the FCC’s fight against malicious spoofing and scam robocalls.”

    Agency Rule-Making & Guidance FCC Robocalls Privacy/Cyber Risk & Data Security Consumer Protection

  • FCC signs robocall enforcement MOU with Australia

    Agency Rule-Making & Guidance

    On June 3, the FCC announced that it entered into a memorandum of understanding (MOU) with the Australian Communications and Media Authority (ACMA) on providing mutual assistance in the enforcement of laws on certain unlawful communications, such as robocall, robotexts, and “spoofing.” FCC Acting Chairwoman Rosenworcel noted that “[r]obocall scams are a global problem that require global commitment and cooperation” and that coordinating with ACMA can aid in removing scammers off of networks to protect consumers and businesses. ACMA Chair Nerida O’Loughlin noted that the agreement strengthens the existing relationship between the ACMA and the FCC in the regulation of unsolicited communications. According to the MOU, the FCC and ACMA understand that it is in their common public interest to, among other things: (i) “cooperate with respect to the enforcement against Covered Violations, including sharing complaints and other relevant information and providing investigative assistance”; (ii) enable “research and education related to unlawful robocalls and caller ID spoofing or overstamping”; (iii) “facilitate mutual exchange of knowledge and expertise through training programs and staff exchanges”: (iv) encourage awareness of economic and legal conditions and theories related to the enforcement of applicable laws as identified in Annex 1 to the MOU; and (v) update each other regarding developments related to the MOU in their respective countries in a timely manner.

    Agency Rule-Making & Guidance MOUs Robocalls FCC Federal Issues

  • FCC issues $4.1 million fine for deceptive robocalls

    Federal Issues

    On April 22, the FCC imposed a $4.1 million fine against a phone carrier for allegedly impersonating other carriers in telemarketing calls and deceiving consumers into changing carriers without consent. The FCC first proposed the fine in 2018 after the agency, state regulators, and the Better Business Bureau received many complaints about this conduct. According to the FCC, the company’s “actions specifically harmed elderly and infirm consumers who, in some cases, were left without telephone service for extended periods of time while the company refused to reinstate service until the unauthorized charges were paid in full.” FCC acting Chairwoman Jessica Rosenworcel issued a statement condemning the “ugly scam” as a violation of the Communications Act, and warned: “To anyone else using our nation’s phone systems to perpetuate this kind of scam, take note because our efforts won’t stop here.”

    Federal Issues FCC Robocalls Telemarketing Consumer Protection Enforcement

  • FCC pushes on robocall blocking

    Agency Rule-Making & Guidance

    On April 13, the FCC took several actions associated with blocking illegal and unsolicited robocalls, including sending cease and desist letters (see here and here) to two carriers that “appear to be transmitting multiple unlawful robocall campaigns” and seeking updated information from all carriers and developers of call-blocking tools to learn more about the tools available to consumers and their effectiveness. Key questions include:

    • Whether the companies are offering call blocking tools to consumers at no charge.
    • How the companies measure the effectiveness of blocking tools.
    • What protections the companies have put in place to ensure that call blocking does not interfere with emergency services.

    In addition to seeking input from the industry, the FCC sent cease and desist letters to two carriers regarding the transmission of illegal robocalls through their networks. The letters warn the carriers that downstream carriers will be authorized to block all of their traffic if they do not take steps within 48 hours to “effectively mitigate illegal traffic.”


    Agency Rule-Making & Guidance FCC Robocalls Privacy/Cyber Risk & Data Security

  • FCC issues record $225 million fine for spoofed robocalls

    Federal Issues

    On March 17, the FCC issued a record $225 million fine against two Texas-based telemarketers and their associated companies for allegedly transmitting roughly one billion illegally spoofed robocalls falsely claiming to offer plans issued by well known-health insurance companies. The Truth in Caller ID Act prohibits telemarketers from manipulating caller ID information with the intent to harm, defraud or wrongfully obtain anything of value. According to the FCC’s investigation, one of the companies’ allegedly spoofed robocalls “caused at least one company whose caller IDs were spoofed to become overwhelmed with angry call-backs from aggrieved consumers.” One of the telemarketers also apparently admitted that he placed millions of spoofed calls each day, including to numbers on the Do Not Call list. FCC acting Chairwoman Jessica Rosenworcel issued a statement commenting on the agency’s “largest fine ever,” in which she noted that the “individuals involved didn’t just lie about who they were when they made their calls—they said they were calling on behalf of well-known health insurance companies on more than a billion calls. That’s fraud on an enormous scale.”

    Federal Issues FCC Enforcement Robocalls Truth in Caller ID Act

  • FCC: Contractors must get consent to make robocalls under TCPA

    Federal Issues

    On December 14, the FCC released an order concluding that federal and state contractors are subject to the restrictions of the TCPA and must obtain prior express consent to call consumers. The order reverses a 2016 decision, which extended the presumption that “the word ‘person’ [in the TCPA] does not include the federal government absent a clear ‘affirmative showing of statutory intent to the contrary’” to calls made by contractors acting as agents of the federal government. The FCC acknowledges a number of requests to reconsider this conclusion, and in an effort to combat unwanted robocalls, the FCC now concludes that this presumption should not be extended to contractors. The FCC notes that there is “no longstanding presumption that a federal contractor is not a ‘person’” and the FCC did not “find any ‘context that otherwise requires’ [them] to ignore the express language of the Communications Act’s definition of the term ‘person’ in this situation.” While the presumption still applies to federal and state governments, the order clarifies that local governments are still considered a “person” under the TCPA and therefore, subject to the robocall restrictions without prior express consent.

    Federal Issues FCC TCPA Robocalls

  • Divided FCC says net neutrality reversal won't hurt public safety

    Federal Issues

    On October 27, the FCC voted 3-2 to adopt an Order on Remand in response to a 2019 decision issued by the U.S. Court of Appeals for the D.C. Circuit (covered by InfoBytes here). The D.C. Circuit’s decision mostly ratified the Commission’s 2017 Restoring Internet Freedom Order that reversed the net neutrality rules barring internet service providers from slowing down or speeding up web traffic based on business relationships, however it remanded three “discrete issues” for the FCC’s further consideration, including how the reversal of the net neutrality rules could affect public safety issues. A Fact Sheet accompanying the Order on Remand stated that the FCC found “no basis to alter” its conclusions in the Restoring Internet Freedom Order, noting that, among other things, “[n]either the Commission’s decision to return broadband Internet access service to its longstanding classification as an information service, nor its decision to eliminate the Internet conduct rules, is likely to adversely impact public safety.”

    Federal Issues FCC Net Neutrality Appellate D.C. Circuit

  • FCC seeks comment on TCPA exemptions

    Agency Rule-Making & Guidance

    On October 1, the FCC issued a Notice of Proposed Rulemaking (NPRM), seeking comment on exemptions already granted under the TCPA allowing certain entities and types of calls to be made using an automatic telephone dialing system. The FCC is required by Section 8 of The Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) to ensure that any exemption granted under the TCPA “includes requirements with respect to: (i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that may be made to a particular called party.” Section 8 of the TRACED Act requires the FCC to prescribe new regulations or amend existing regulations with regard to the TCPA exemptions no later than December 30, 2020. The FCC is seeking comment on the current nine exemptions, which include, among other things, financial-institution calls to a wireless number. The FCC notes that the current conditions under the financial institution exemption “appear to satisfy section 8 of the TRACED Act” because there are limitations on the class of calling parties, the class of called parties, and the number of calls (no more than three calls per event over a three-day period for each affected account).

    Additionally, the FCC seeks comment on the exemption allowing commercial calls to residences that do not constitute telemarketing. The FCC notes that the current exemption does not appear to satisfy Section 8’s requirements, as there is not enough specificity of the class of party that makes the calls, nor is there a limit on the number of calls that can be made. The FCC proposes to alter this exemption into two types of classes of parties: informational and transactional callers and seeks comment on whether to limit the number of calls that can be made under this exemption.

    Comments will be due 15 days after publication in the Federal Register.

    Agency Rule-Making & Guidance FCC TCPA TRACED Act

  • 6th Circuit affirms expansive autodialer definition


    On July 29, the U.S. Court of Appeals for the 6th Circuit affirmed summary judgment in favor of the plaintiffs in a TCPA action, holding that a device used by a student loan servicer that only dials from a stored list of numbers qualifies as an automatic telephone dialing system (“autodialer”). According to the opinion, a borrower and co-signer sued the student loan servicer alleging the servicer violated the TCPA by using an autodialer to place calls to their cell phones without consent. The district court granted summary judgment in favor of the plaintiffs and awarded over $176,000 in damages. On appeal, the servicer argued that the equipment used did not qualify as an autodialer under the TCPA’s definition, because the calls are placed from a stored list of numbers and are not “randomly or sequentially” generated. The 6th Circuit rejected this argument, joining the 2nd and 9th Circuits, holding that under the TCPA, an autodialer is defined as “equipment which has the capacity—(A) to store [telephone numbers to be called]; or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” This decision is in conflict with holdings by the 3rd, 7th, and 11th Circuits, which have held that autodialers require the use of randomly or sequentially generated phone numbers, consistent with the D.C. Circuit’s holding that struck down the FCC’s definition of an autodialer in ACA International v. FCC (covered by a Buckley Special Alert).

    As previously covered by InfoBytes, the U.S. Supreme Court recently agreed to address the definition of an autodialer under the TCPA, which will resolve the split among the circuits.

    Courts Appellate Sixth Circuit Autodialer TCPA FCC

  • FCC provides safe harbors for blocking illegal robocalls

    Privacy, Cyber Risk & Data Security

    On July 16, the FCC issued an order adopting rules to further encourage phone companies to block illegal and unwanted robocalls and to continue the Commission’s implementation of the TRACED Act (covered by InfoBytes here). The rule establishes two safe harbors from liability for the unintended or inadvertent blocking of wanted calls: (i) voice service providers will not be held liable under the Communications Act and FCC rules on terminating voice service providers that block calls, provided “reasonable analytics,” such as caller ID authentication information, are used to identify and block illegal or unwanted calls; and (ii) voice service providers will not be held liable for blocking calls from “bad-actor upstream voice service providers that continue to allow unwanted calls to traverse their networks.” The FCC’s order also includes a Further Notice of Proposed Rulemaking seeking comments on, among other things, “whether to obligate originating and intermediate providers to better police their networks against illegal calls,” whether the “reasonable analytics” safe harbor should be expanded “to include network-based blocking without consumer opt-out,” and whether the Commission should adopt more extensive redress requirements, and require terminating providers to provide consumers information about blocked calls.

    Privacy/Cyber Risk & Data Security FCC Robocalls TRACED Act