FCC Considering Shaken/Stir Mandate for Larger Carriers; Delay Unlikely for Robocall Vote

Chairman Ajit Pai told fellow commissioners Friday a Further NPRM on robocalls is being changed to add a proposal that the FCC mandate secure handling of asserted information using tokens (Shaken) and secure telephone identity revisited (Stir) technology if major voice providers don’t comply with demands that it be implemented by year-end, officials said. The change came after the start of the sunshine period on the item, closing off outreach.

After a big push from industry groups last week, other questions are expected from commissioners on the robocalling declaratory ruling. They are slated to vote Thursday (see 1905150041).

While all commissioners support clamping down on robocalls, Democrats Jessica Rosenworcel and Geoffrey Starks have particular concerns that the text isn’t more explicit in saying robocall blocking technology should be free for consumers, agency and industry officials said. But Pai likely has more than enough votes for approval. Rosenworcel tweeted last week she won’t support efforts to delay a vote. In December, Rosenworcel sent letters to major phone companies calling on them to offer free robocall blocking solutions (see 1812120026).

“While those who are bombarding consumers with unwanted robocalls are unhappy with this item, we are pleased with the reception it has received among the American people, who are sick and tired of receiving these calls," an FCC spokesperson emailed. "We look forward to the vote next week and are optimistic that the Commission will take strong action to combat unwanted robocalls.”

Pai’s office appears to have miscalculated on parts of the ruling, lawyers active in the proceeding told us. “Robocalls should be the easiest thing to move on, yet somehow this proposal has public interest groups, phone companies, businesses, and public safety all concerned about different side effects,” said an attorney who represents phone companies that are assessing the proposals. “Some of the chairman’s usual policy allies have been mum.”

Other questions have emerged on the legal reasoning behind the declaratory ruling, which some see as relatively thin. “To use the language of the [Communications] Act, we find that opt-out call-blocking programs are generally just and reasonable practices (not unjust and unreasonable practices) and enhancements of service (not impairments of service),” the draft states. It cites section 201(b) of the Communications Act.

“We appreciate the Commission’s recognition that Title II of the Communications Act is the appropriate framework for prioritizing both consumer control and competition in communications networks, including protections from unlawful, harmful, and unwanted communications,” Public Knowledge said in docket 17-59. “The Commission’s work in this regard demonstrates that it is not necessary for it to give up important legal safeguards to modernize its regulatory approach.”

The biggest criticism of the declaratory ruling has been that it would lead to the blocking of calls that should get through.

Groups representing the financial sector asked the FCC to rethink parts of the ruling. The American Bankers Association, ACA International, American Association of Healthcare Administrative Management, American Financial Services Association, Consumer Bankers Association, Credit Union National Association, Independent Community Bankers of America, Mortgage Bankers Association, National Association of Federally-Insured Credit Unions and National Retail Federation all signed a letter posted Friday.

“We are deeply concerned that the draft Declaratory Ruling … would result in the erroneous blocking of lawful calls -- including urgent calls affecting consumer health, safety, and financial well- being,” the groups said: “Public safety alerts, fraud alerts, data security breach notifications, product recall notices, healthcare and prescription reminders, and power outage updates all could be inadvertently blocked under the draft Declaratory Order, among other time-sensitive calls.”

Incompas warned the FCC the declaratory ruling could lead to “anticompetitive behavior by large providers who use these programs to block calls originated by competitive providers in the name of consumer protection.” Incompas said the ruling is a “significant expansion of the authority of providers to block suspected robocalls.” Incompas said that “embracing unknown and untested call blocking features as a default treatment amounts to an overcorrection that will actually further undermine consumer confidence in the value and seamless ubiquity of voice communications.” NTCA said the order should be changed to protect rural consumers from “‘false positives’” that may inadvertently limit their ability to place or receive calls.

CTIA and USTelecom asked the FCC to clarify in the declaratory order that the target of authorized call blocking is “unwanted calls, which is a term broader than and inclusive of illegal calls.” The order would use the terms unwanted and illegal robocalls interchangeably, which could “create uncertainty that deters voice service providers from taking aggressive actions,” the two said, asking to “clarify that voice service providers may identify unwanted calls based on any reasonable analytics.”