Implementation of the Truth in Caller ID Act of 2009, 16367-16375 [2011-6877]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16367-16375]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6877]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 64

[WC Docket No. 11-39; FCC 11-41]


Implementation of the Truth in Caller ID Act of 2009

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Commission 
proposes rules to implement the Truth in Caller ID Act of 2009. The 
proposed rules prohibit caller ID spoofing done with the intent to 
defraud, cause harm, or wrongfully obtain anything of value. The 
Commission also seeks comments that will assist the Commission in 
preparing a statutorily required report to Congress on whether 
additional legislation is necessary to prohibit the provision of 
inaccurate caller identification information in technologies that are 
successor or replacement technologies to telecommunications services or 
IP-enabled voice services.

DATES: Comments are due on or before April 18, 2011 and reply comments 
are due on or before May 3, 2011.

ADDRESSES: You may submit comments, identified by WC Docket No. 11-39, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.

[[Page 16368]]

     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the supplementary 
information section of this document.

FOR FURTHER INFORMATION CONTACT: Lisa Hone, Wireline Competition 
Bureau, Competition Policy Division, 202-418-1580.

SUPPLEMENTARY INFORMATION: Pursuant to Sec. Sec.  1.415 and 1.419 of 
the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may 
file comments on or before April 18, 2011 and reply comments on or 
before May 3, 2011. Comments may be filed using: (1) The Commission's 
Electronic Comment Filing System (ECFS), (2) the Federal Government's 
eRulemaking Portal, or (3) by filing paper copies. See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/or the Federal eRulemaking Portal: https://www.regulations.gov.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    Filings and comments are also available for public inspection and 
copying during regular business hours at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. They may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300, 
fax: (202) 488-5563, or via e-mail https://www.bcpiweb.com.

Initial Paperwork Reduction Act of 1995 Analysis

    This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    Below is a synopsis of the Commission's Notice of Proposed 
Rulemaking in WC Docket No. 11-39, adopted March 9, 2011, and released 
March 9, 2011.

Synopsis of Further Notice of Proposed Rulemaking

    1. In this NPRM, the Commission seeks comment on proposed rules to 
implement the Truth in Caller ID Act of 2009 (Truth in Caller ID Act, 
or Act), signed into law on December 22, 2010. Caller ID services 
identify the telephone numbers and sometimes the names associated with 
incoming calls. The Truth in Caller ID Act prohibits anyone in the 
United States from causing any caller identification service to 
knowingly transmit misleading or inaccurate caller ID information with 
the intent to defraud, cause harm, or wrongfully obtain anything of 
value. The Truth in Caller ID Act requires the Commission to issue 
implementing regulations within six months of the law's enactment. It 
also requires the Commission, by the same date, to submit a report to 
Congress on ``whether additional legislation is necessary to prohibit 
the provision of inaccurate caller identification information in 
technologies that are successor or replacement technologies to 
telecommunications services or IP-enabled voice services.''
    2. In order to implement the Truth in Caller ID Act, the Commission 
proposes to (i) add a section to the Commission's current rules 
governing Calling Party Number (CPN) services, and (ii) enhance the 
Commission's forfeiture rules. The proposed additions to the 
Commission's CPN rules are modeled on the Act's prohibition against 
engaging in caller ID spoofing with fraudulent or harmful intent, and 
include the statutory exemptions to the prohibition. The proposed rules 
also include new definitions. The proposed amendments to the 
Commission's forfeiture rules implement the forfeiture penalties and 
forfeiture process provided for in the Act.

A. Proposed Amendments to the Commission's Rules Relating to Calling 
Party Numbers

    3. The Commission proposes rules that would prohibit any person or 
entity in the United States, with the intent to defraud, cause harm, or 
wrongfully obtain anything of value, from knowingly causing, directly 
or indirectly, any caller identification service to transmit or display 
misleading or inaccurate caller identification information. The Act's 
prohibition is directed at spoofing ``in connection with any 
telecommunications service or IP-enabled voice service.'' The proposed 
rules define ``caller identification service'' and ``caller 
identification information'' to encompass both types of calls; 
therefore, the proposed rules would apply to calls made using both 
types of services. The Commission seeks comment on this approach, and 
whether the Commission needs to take any other steps to ensure that 
calls made using telecommunications services and interconnected VoIP 
services are covered by the proposed rules.
    4. The Commission also seeks comment on the use of the word 
``knowingly'' in the statute and our proposed rules. The statutory 
language prohibits anyone from ``causing any caller identification 
service to knowingly transmit misleading or inaccurate caller 
identification information with the intent to defraud, cause harm or 
wrongfully obtain anything of value'' and could be read to require 
knowledge by either the caller identification service or the actor 
employing the caller identification service. However, in many 
instances, the caller identification service has no way of knowing 
whether or not the

[[Page 16369]]

caller identification information it receives has been manipulated. The 
proposed rules thus focus on whether the caller has knowingly 
manipulated the caller identification information that is seen by the 
call recipient in order to defraud, cause harm, or wrongfully obtain 
anything of value. Our proposed rules provide that the person or entity 
prohibited from ``knowingly'' causing transmission or display of 
inaccurate or misleading caller identification is the same person or 
entity that must be acting with intent to defraud, cause harm, or 
wrongfully obtain anything of value. The proposed rules address both 
transmitting and displaying inaccurate caller identification 
information to make clear that, even if a carrier or interconnected 
VoIP provider transmits accurate caller identification information, it 
would be a violation for a person or entity to cause a device that 
displays caller identification information to display inaccurate or 
misleading information with the intent to defraud, cause harm, or 
wrongfully obtain anything of value. The Commission seeks comment on 
whether these proposed rules accurately reflect Congress' intent. Are 
there any changes to the proposed rules that would improve how this 
prohibition is expressed?
    5. The Commission also seeks comment on whether the proposed 
prohibition on causing any caller identification service to transmit or 
display ``misleading or inaccurate'' caller identification information 
with the ``intent to defraud, cause harm, or wrongfully obtain anything 
of value'' provides sufficiently clear guidance about what actions are 
prohibited. Do the proposed rules provide the public with 
``ascertainable certainty'' about what would constitute a violation of 
the Act? Are the terms used in the proposed rules sufficiently well 
understood concepts that the public reasonably should know which 
actions are prohibited? For example, must the legal elements of common 
law ``fraud'' be met for a finding of intent to ``defraud'' under the 
Commission's proposed rules? Are there other statutes that provide 
relevant and well-defined standards for what it means to ``defraud'' 
someone? To the extent that greater specification is desirable, how 
should the proposed rules be changed to provide the desired clarity 
while remaining faithful to Congress' intent? The Commission also seeks 
comment on the different methods that a person or entity can employ to 
cause a caller identification service to transmit misleading or 
inaccurate information, and whether our proposed rules adequately 
encompass all such methods.
    6. Definitions. The Act specifies that ``IP-Enabled Voice Service'' 
has the same meaning as Sec.  9.3 of the Commission's regulations (47 
CFR 9.3). The Commission's regulations define ``Interconnected VoIP 
service'' rather than ``IP-Enabled Voice Services.'' Although the Act's 
use of a term other than the one set forth in the Commission's 
regulations might allow other interpretations, the Act's specific 
reference to the Commission's rule defining interconnected VoIP service 
indicates that Congress intended the scope of the caller ID spoofing 
prohibition to track the Commission's definition of interconnected VoIP 
service. Consequently, the proposed rules use the term ``Interconnected 
VoIP service'' and specify that it has the same meaning given the term 
``Interconnected VoIP service'' in 47 CFR 9.3 as it currently exists or 
may hereafter be amended. The Commission seeks comment on this 
proposal. The Department of Justice (DOJ) has suggested that the 
Commission could instead model a definition of IP-enabled voice service 
on the definition of that term in 18 U.S.C. 1039(h)(4). DOJ's proposed 
definition is broader than the Commission's and would not require the 
user to have a broadband connection, and would not require that users 
be able to originate traffic to and terminate traffic from the public 
switched telephone network. The Commission seeks comment on DOJ's 
suggestion, and on other suggestions for defining ``IP-Enabled Voice 
Service,'' including the advantages and disadvantages of adopting a 
particular definition. Commenters should also explain how such an 
interpretation is in accord with the reference to 47 CFR 9.3 in the 
statute.
    7. The Commission proposes defining ``Caller identification 
information'' to mean ``information provided by a caller identification 
service regarding the telephone number of, or other information 
regarding the origination of, a call made using a telecommunications 
service or interconnected VoIP service,'' and defining ``Caller 
identification service'' to mean ``any service or device designed to 
provide the user of the service or device with the telephone number of, 
or other information regarding the origination of, a call made using a 
telecommunications service or interconnected VoIP service. Such term 
includes automatic number identification services.'' The Commission's 
proposed rules adopt the definitions in the Act, except that, as 
described above, the proposed definitions use the term ``interconnected 
VoIP services'' instead of ``IP-enabled voice services.''
    8. The Commission seeks comment on whether the definitions of 
``Caller identification information'' and ``Caller identification 
service'' in the proposed rules are sufficiently clear. Are there 
services other than traditional caller ID services (i.e., services that 
terminating carriers and Interconnected VoIP provide to their 
subscribers) that are, or should be, included within the definition of 
``Caller identification service''? For example, spoofing caller 
identification information transmitted to emergency services providers 
is a particularly dangerous practice, and one which Congress was 
particularly concerned about when adopting the Truth in Caller ID Act. 
Should the delivery of caller identification information to E911 public 
safety answering points, which use automatic number identification 
(ANI) to look up the caller's name and location information on 
emergency calls, be considered a type of ``Caller identification 
service'' for purposes of our rules? What are the benefits and 
drawbacks to including information about calling parties provided to 
E911 public safety answering points as ``Caller identification 
information?''
    9. The term ``Caller identification service'' in the Act explicitly 
includes ``automatic number identification services.'' The Commission's 
current rules relating to the delivery of CPN services define ANI as 
the ``delivery of the calling party's billing number by a local 
exchange carrier to any interconnecting carrier for billing or routing 
purposes, and to the subsequent delivery of such number to end users. 
We seek comment on whether we should use a different definition of ANI 
for purposes of the Truth in Caller ID Act. In particular should we 
include in the proposed rules a definition of ANI that encompasses 
charge party numbers delivered by interconnected VoIP providers? What 
are the consequences of referencing automatic number identification 
services in the definition of ``Caller identification service,'' but 
not in the definition of Caller identification information?
    10. The Act and proposed rules define ``Caller identification 
Information'' and ``Caller identification service'' to include ``the 
telephone number of, or other information regarding the origination of, 
a call.'' The Commission proposes to define ``information regarding the 
origination'' to mean any: (i) Telephone number; (ii) portion of a 
telephone number, such as an area code; (iii) name; (iv) location 
information; or (v)

[[Page 16370]]

other information regarding the source or apparent source of a 
telephone call. The Commission seeks comment on this proposed 
definition. Are there other things that should be included in the 
definition? For example, should the definition explicitly reference 
information transmitted in the SS7 Jurisdiction Information Parameter 
(JIP) code that provides information about the location of a caller who 
has ported his number or is calling over a mobile service? Does the 
proposed definition provide sufficient clarity about what is included?
    11. The Act is directed at ``any person,'' but does not define the 
term ``person.'' In order to make clear that the rules are not limited 
to natural persons and to be consistent with the Commission's current 
rules concerning the delivery of CPN, the proposed amendments to the 
CPN rules use the phrase any ``person or entity.'' By contrast, the 
proposed amendments to the Commission's forfeiture rules use the term 
``person'' in order to be consistent with the use of the term 
``person'' in the forfeiture rules. In both cases, the Commission 
intends for the entities covered to be those that are considered to be 
a ``person'' under the definition of ``person'' in the Communications 
Act. The Commission seeks comment on this approach. Should the 
Commission, consistent with its stated intent, incorporate the 
Communications Act definition of person in both rules rather than use 
different terminology in each rule? The Commission also seeks comment 
on whether it should exclude any class of persons or entities from the 
definition of ``person'' and if so, whom it should exclude. Should the 
same rules apply to individuals and businesses? The Commission also 
seeks comment on whether there are other terms that should be defined 
in the Commission's implementing regulations.
    12. Third-Party Spoofing Services. There are numerous third-party 
providers of caller ID spoofing services, which can make it easy for 
callers to engage in caller ID spoofing. Third-party spoofing services 
can facilitate lawful and legitimate instances of caller ID 
manipulation as well as unlawful and illegitimate caller ID 
manipulation. DOJ has urged the Commission to consider adopting rules 
requiring ``public providers of caller ID spoofing services to make a 
good-faith effort to verify that a user has the authority to use the 
substituted number, such as by placing a one-time verification call to 
that number.'' The Commission invites comment on whether the Commission 
can, and should, adopt rules imposing obligations on providers of 
caller ID spoofing services when they are not themselves acting with 
intent to defraud, cause harm, or wrongfully obtain anything of value. 
For example, are there reporting or record-keeping requirements that we 
can and should impose on third-party spoofing services that would 
assist the Commission in preventing callers from knowingly spoofing 
caller identification information with intent to defraud, cause harm, 
or wrongfully obtain anything of value or that would assist the 
Commission in identifying callers who engage in such practices? The 
Commission also seeks comment on DOJ's specific proposal relating to 
providers of caller ID spoofing services, and more broadly on what 
rules we can adopt to discourage or prevent caller ID spoofing services 
from enabling or facilitating unlawful conduct. If a third-party 
provider knows or has reason to believe that a caller is seeking to use 
the caller ID spoofing service for impermissible purposes, should the 
third party be held liable, or have a duty to report its concerns to 
the Commission? What jurisdiction does the Commission have to impose 
obligations on third-party providers? How would DOJ's proposal, or 
other possible approaches to address third-party services that may 
facilitate unlawful activity, affect the callers that use third-party 
services for permissible purposes?
    13. Exemptions. The Act directs the Commission to exempt from its 
regulations: (i) any authorized activity of a law enforcement agency; 
and (ii) court orders that specifically authorize the use of caller 
identification manipulation. The Act also makes clear that it ``does 
not prohibit any lawfully authorized investigative, protective, or 
intelligence activity of a law enforcement agency of the United States, 
a State or a political subdivision of a State, or of an intelligence 
agency of the United States.'' The proposed rules therefore incorporate 
the two exemptions specified in the Act, and expand the exemption for 
law enforcement activities to cover protective and intelligence 
activities. The Commission seeks comment on this proposal.
    14. The Act gives the Commission authority to adopt additional 
exemptions to the prohibition on using caller ID spoofing as the 
Commission determines appropriate. Therefore, the Commission also seeks 
comment on whether it should adopt any additional exemptions. Do 
carriers or interconnected VoIP providers engage in legitimate conduct 
that could be implicated by the proposed rules? For example, in many 
instances, the carrier or provider merely transmits the caller ID 
information it receives from another carrier, provider, or customer. 
Should the Commission expressly exempt carrier or provider conduct 
under these circumstances, even if the information conveyed is not 
accurate? Should the Commission more generally exempt conduct by 
carriers or interconnected VoIP providers that is necessary to provide 
services to their customers? The Act exempts authorized activity of law 
enforcement agencies and court orders that specifically authorize the 
use of caller identification manipulation. Should the proposed rules 
also exempt conduct by carriers or interconnected VoIP providers that 
is authorized or required by law? Are any such exemptions for carriers 
and interconnected VoIP providers necessary, given the Act's 
requirement that a violation involve intent to defraud, cause harm, or 
wrongfully obtain anything of value?
    15. Some caller identification manipulation services allow 
customers to select which caller identification information is 
displayed. Likewise, certain services--such as pick-your-own-area-
code--enable customers to select phone numbers that are not 
geographically associated with their location, and thus are potentially 
misleading with respect to the ``origination of'' calls by such 
persons. Does the Commission need to adopt an exemption to avoid 
stifling innovative new services such as call back services or services 
that involve manipulation of area codes, or location?
    16. Caller ID Blocking. The Truth in Caller ID Act specifies that 
it is not intended to be construed to prevent or restrict any person 
from blocking the transmission of caller identification information. 
The legislative history shows that Congress intended to protect 
subscribers' ability to block the transmission of their own caller 
identification information to called parties. Therefore, the proposed 
rules provide that a person or entity that blocks or seeks to block a 
caller identification service from transmitting or displaying that 
person or entity's own caller identification information shall not be 
liable for violating the Commission's Truth in Caller ID Act 
implementing rules. The Commission seeks comment on whether the 
proposed rules appropriately implement this provision of the Act.
    17. Although the Commission's rules generally allow callers to 
block caller ID, telemarketers are not allowed to do so. Telemarketers 
are required to transmit caller identification

[[Page 16371]]

information, and the phone number they transmit must be one that a 
person can call to request placement on a company-specific do-not-call 
list. This requirement benefits consumers and law enforcement. It 
allows consumers to more easily identify incoming telemarketing calls 
and to make informed decisions about whether to answer particular 
calls. It also facilitates consumers' ability to request placement on 
company-specific do-not-call lists. The requirement also assists law 
enforcement investigations into telemarketing complaints. Therefore, 
the proposed rules specify that any person or entity that engages in 
telemarketing, as defined in Sec.  64.1200(f)(10) of the Commission's 
rules, remains obligated to transmit caller identification information 
under Sec.  64.1601(e) of the Commission's rules. The Commission seeks 
comment on this provision of the proposed rules.
    18. Some entities--often the same ones that offer spoofing 
services--also offer the ability to unmask a blocked number, 
effectively stripping out the privacy indicator chosen by the calling 
party. Are there ways that carriers and interconnected VoIP providers 
can prevent third parties from overriding calling parties' privacy 
choice? If so, would it be appropriate for the Commission to impose 
such obligations? What legal authority does the Commission have to 
address this practice? Commenters that support amending the 
Commission's rules should identify specific rule changes that will 
prevent these practices while ensuring that consumers' privacy 
preferences are respected.
    19. Finally, we seek comment on the benefits and burdens, including 
the burdens on small entities, of adopting the proposed rules 
implementing the provisions of the Truth in Caller ID Act. Are there 
any other considerations the Commission should take into account as it 
evaluates rules to implement the Act?

B. Enforcement Issues

    20. The Truth in Caller ID Act provides for additional forfeiture 
penalties for violations of section 227(e) of the Communications Act, 
and new procedures for imposing and recovering such penalties. In order 
to implement the forfeiture provisions of the Truth in Caller ID Act, 
we propose modifications to the Commission's forfeiture rules. We seek 
comment on the proposed amendments to our forfeiture rules and on some 
additional issues relating to enforcement of the Truth in Caller ID 
Act.
    21. Amount of Penalties. The Act specifies that the penalty for a 
violation of the Act ``shall not exceed $10,000 for each violation, or 
3 times that amount for each day of a continuing violation, except that 
the amount assessed for any continuing violation shall not exceed a 
total of $1,000,000 for any single act or failure to act.'' These 
forfeitures are in addition to penalties provided for elsewhere in the 
Communications Act. Thus the Truth in Caller ID Act establishes the 
maximum amount of additional forfeiture the Commission can assess for a 
violation of the Act, but it does not specify how the Commission should 
determine the forfeiture amount in any particular situation. Therefore, 
the Commission proposes to amend Sec.  1.80(b) of our rules to include 
a provision specifying the maximum amount of the additional fines that 
can be assessed for violations of the Truth in Caller ID Act. The 
Commission also proposes to employ the balancing factors we typically 
use to inform the amount of a forfeiture, which are set forth in 
section 503(b)(2)(E) of the Communications Act and Sec.  1.80(b)(4) of 
the Commission's rules. The balancing factors include ``the nature, 
circumstances, extent, and gravity of the violation, and, with respect 
to the violator, the degree of culpability, any history of prior 
offenses, ability to pay, and such other matters as justice may 
require.'' The Commission seeks comment on these proposals.
    22. Procedure for Determining Penalties. With respect to the 
procedure for determining or imposing a penalty, the Act provides that 
``[a]ny person that is determined by the Commission, in accordance with 
paragraphs (3) and (4) of section 503(b) [of the Communications Act], 
to have violated this subsection shall be liable to the United States 
for a forfeiture penalty.'' It also states that ``[n]o forfeiture 
penalty shall be determined under clause (i) against any person unless 
such person receives the notice required by section 503(b)(3) or 
section 503(b)(4) [of the Communications Act].'' Taken together, 
sections 503(b)(3) and 503(b)(4) allow the Commission to impose a 
forfeiture penalty against a person through either a hearing or a 
written notice of apparent liability (NAL), subject to certain 
procedures. The Truth in Caller ID Act makes no reference to section 
503(b)(5) of the Communications Act, which states that the Commission 
may not assess a forfeiture under any provision of section 503(b) 
against any person, who: (i) ``does not hold a license, permit, 
certificate, or other authorization issued by the Commission;'' (ii) 
``is not an applicant for a license, permit, certificate, or other 
authorization issued by the Commission;'' or (iii) is not ``engaging in 
activities for which a license, permit, certificate, or other 
authorization is required,'' unless the Commission first issues a 
citation to such person in accordance with certain procedures. That 
omission suggests that Congress intended to give the Commission the 
authority to proceed expeditiously to stop and, where appropriate, 
assess a forfeiture against, unlawful caller ID spoofing by any person 
or entity engaged in that practice without first issuing a citation. 
Therefore, the proposed rules would allow the Commission to determine 
or impose a forfeiture penalty for a violation of section 227(e) 
against ``any person,'' regardless of whether that person holds a 
license, permit, certificate, or other authorization issued by the 
Commission; is an applicant for any of the identified 
instrumentalities; or is engaged in activities for which one of the 
instrumentalities is required. The proposed rules clarify that the 
citation-first requirements in the Commission's rules do not apply to 
penalties imposed for violations of the Truth in Caller ID Act. The 
Commission invites comment on this interpretation of the relationship 
between the Truth in Caller ID Act and section 503(b)(5) of the 
Communications Act.
    23. In contrast to section 503(b)(1)(B) of the Communications Act, 
which provides for a forfeiture penalty against anyone who has 
``willfully or repeatedly'' failed to comply with any provisions of the 
Communications Act, or any regulations issued by the Commission under 
the Act, the Truth in Caller ID Act does not require ``willful'' or 
``repeated'' violations to justify imposition of a penalty. Therefore, 
the Commission proposes to amend Sec.  1.80(a) of the Commission's 
rules to add a new paragraph (a)(4) providing that forfeiture penalties 
may be assessed against any person found to have ``violated any 
provision of section 227(e) or of the rules issued by the Commission 
under that section of the Act.'' The Commission seeks comment on that 
proposal.
    24. Statute of Limitations. The Truth in Caller ID Act specifies 
that ``[n]o forfeiture penalty shall be determined or imposed against 
any person under [section 227(e)(5)(i)] if the violation charged 
occurred more than 2 years prior to the date of issuance of the 
required notice or notice of apparent liability.'' This statute differs 
from the one in section 403(b)(6) of the Communications Act, which 
provides for a one-year statute of limitations. The Commission proposes 
to adopt a two-year statute of limitations for taking

[[Page 16372]]

action on violations of the Truth in Caller ID Act. The Commission 
seeks comment on this proposal.
    25. Miscellaneous. The Commission also takes this opportunity to 
propose redesignating as ``Note to paragraph 1.80(a)'' the undesignated 
text in section 1.80(a) and revising the new ``Note to paragraph 
1.80(a)'' to address issues not directly relating to implementation of 
the Truth in Caller ID Act. First, in order to ensure that the language 
in the rule encompasses the language used in all of the statutory 
provisions, the Commission proposes amending the rule to say that the 
forfeiture amounts set forth in Sec.  1.80(b) are inapplicable ``to 
conduct which is subject to a forfeiture penalty or fine'' under the 
various statutory provisions listed. (Emphasis added.) Second, the 
Commission proposes changing the references to sections 362(a) and 
362(b) to sections 364(a) and 364(b) in order that the statutory 
provision references match those used in the Communications Act, rather 
than the U.S. Code. (Section 364 of the Communications Act is codified 
as 47 U.S.C. 362.) Third, the Commission proposes deleting section 
503(b) from the list of statutory provisions to which the forfeiture 
amounts in Sec.  1.80(b) do not apply, because the inclusion was error; 
Sec.  1.80(b) implements the forfeiture amounts of section 503(b), and 
so the penalties set forth in Sec.  1.80(b) apply to forfeiture under 
section 503(b). The Commission seeks comment on these proposed changes 
to its forfeiture rules.

C. Report

    26. The Truth in Caller ID Act requires the Commission to issue a 
report to Congress within six months of the law's enactment on 
``whether additional legislation is necessary to prohibit the 
provisions of inaccurate caller identification information in 
technologies that are successor or replacement technologies to 
telecommunications services or IP-enabled voice services.'' The 
Commission seeks comment on which technologies parties anticipate will 
be successor or replacement technologies to telecommunications services 
or IP-enabled voice services. The Commission also seeks comment on the 
provision of inaccurate caller ID information with respect to such 
technologies, and whether the Commission will need additional authority 
to address concerns about caller ID spoofing associated with such 
successor or replacement technologies. In particular, the Commission 
seeks comment on communications services that are not interconnected 
with the public switched telephone network. In addition, the Commission 
seeks comment on whether there are other issues that the Commission 
should include in its report to Congress.

Procedural Matters

A. Paperwork Reduction Act Analysis

    27. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified information collection burdens for small business concerns 
with fewer than 25 employees, pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

B. Initial Regulatory Flexibility Analysis

    28. As required by the Regulatory Flexibility Act of 1980, as 
amended, the Commission has prepared an Initial Regulatory Flexibility 
Analysis (IRFA) for this NPRM of the possible significant economic 
impact on a substantial number of small entities by the policies and 
rules proposed in this notice of proposed rulemaking. Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
on the further notice of proposed rulemaking. The Commission will send 
a copy of the notice of proposed rulemaking, including this IRFA, to 
the Chief Counsel for Advocacy of the SBA.

C. Ex Parte Presentations

    29. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented is generally required. Other requirements 
pertaining to oral and written presentations are set forth in Sec.  
1.1206(b) of the Commission's rules.

Ordering Clauses

    30. Accordingly, it is ordered that, pursuant to section 2 of the 
Truth in Caller ID Act of 2009, Pub. Law 11-331, and sections 1, 4(i), 
4(j), 227, and 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i), 154(j), 227 and 303(r) this Notice, with all 
attachments, is adopted.
    31. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Initial Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities by 
the policies and rules proposed in this Notice of Proposed Rule Making 
(NPRM). Written public comments are requested on this IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments provided in this NPRM. The Commission will send 
a copy of this NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA).

A. Need for, and Objectives of, the Proposed Rules

    2. The Truth in Caller ID Act of 2009 (Truth in Caller ID Act, or 
Act) was enacted on December 22, 2010. The Act prohibits anyone in the 
United States from causing any caller identification service to 
knowingly transmit misleading or inaccurate caller ID information with 
the intent to defraud, cause harm, or wrongfully obtain anything of 
value. The Truth in Caller ID Act requires the Commission to issue 
implementing regulations within six months of the law's enactment. It 
also requires the Commission, by the same date, to submit a report to 
Congress on ``whether additional legislation is necessary to prohibit 
the provision of inaccurate caller identification information in 
technologies that are successor or replacement technologies to 
telecommunications services or IP-enabled voice services.'' The NPRM 
proposes to (i) add a new section and new definitions to the 
Commission's current rules governing Calling Party Number (CPN) 
services, 47 CFR 64.1600 et seq., and (ii) enhance the Commission's 
forfeiture rules, 47 CFR 1.80.
    3. The proposed additions to the Commission's CPN rules are modeled 
on the Act's prohibition against engaging in caller ID spoofing with 
fraudulent or harmful intent. The proposed rules would prohibit any 
person or entity in the United States, with the intent to defraud, 
cause harm, or wrongfully obtain anything of value, from knowingly 
causing, directly or indirectly, any caller identification

[[Page 16373]]

service to transmit or display misleading or inaccurate caller 
identification information. The Act directs the Commission to exempt 
from its regulations: (i) any authorized activity of a law enforcement 
agency; and (ii) court orders that specifically authorize the use of 
caller identification manipulation. The Act also makes clear that it 
``does not prohibit any lawfully authorized investigative, protective, 
or intelligence activity of a law enforcement agency of the United 
States, a State or a political subdivision of a State, or of an 
intelligence agency of the United States.'' The proposed rules 
therefore incorporate the two exemptions specified in the Act, and 
expand the exemption for law enforcement activities to cover protective 
and intelligence activities.
    4. The proposed amendments to the Commission's forfeiture rules are 
intended to implement the penalties and procedures for imposing 
penalties provided for in the Act. The Act specifies that the penalty 
for a violation of the Act ``shall not exceed $10,000 for each 
violation, or 3 times that amount for each day of a continuing 
violation, except that the amount assessed for any continuing violation 
shall not exceed a total of $1,000,000 for any single act or failure to 
act.'' These forfeitures are in addition to penalties provided for 
elsewhere in the Communications Act. Therefore, the proposed amendments 
to Sec.  1.80(b) of the Commission's rules include a provision 
specifying the maximum amount of the additional fines that can be 
assessed for violations of the Truth in Caller ID Act. Also, consistent 
with the specifications of the Act, the proposed rules would allow the 
Commission to determine or impose a forfeiture penalty for a violation 
of section 227(e) against ``any person,'' regardless of whether that 
person holds a license, permit, certificate, or other authorization 
issued by the Commission; is an applicant for any of the identified 
instrumentalities; or is engaged in activities for which one of the 
instrumentalities is required.
    5. The proposed rules do not impose recording keeping or reporting 
obligations on any entity. The NPRM does, however, seek comment on 
whether the Commission can and should adopt rules imposing obligations 
on providers of caller ID spoofing services. The NPRM also seeks 
comment on whether there are ways that carriers and interconnected VoIP 
providers can prevent third parties from unmasking a blocked number and 
overriding calling parties' privacy choice.

B. Legal Basis

    6. The proposed action is authorized under the Truth in Caller ID 
Act, Pub. Law 111-331, codified at 47 U.S.C. 227(e), and sections 1, 
4(i), 4(j), and 303 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i)-(j), and 303.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    7. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business'' and ``small organization.'' In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act. A small business concern is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the SBA.
    8. Small Business. Nationwide as of 2009, there are approximately 
27.5 million small businesses, according to the SBA.
    9. Small Organizations. Nationwide as of 2002, there were 
approximately 1.6 million small organizations. A ``small organization'' 
is generally ``any not-for-profit enterprise which is independently 
owned and operated and is not dominant in its field.''
    10. The Small Businesses and Small Organizations that will be 
directly affected by the proposed rules are those that knowingly spoof 
caller ID with the intent to defraud, cause harm, or wrongfully obtain 
anything of value. We are not aware of any attempts to quantify the 
number of small businesses or organizations engaged in such practices, 
nor have we have identified a feasible way to quantify the number of 
such entities.
    11. In addition to entities that spoof their caller identification 
information, there are entities that provide caller ID spoofing 
services--services that make it possible for callers to alter or modify 
the caller identification information that is displayed to call 
recipients by their caller ID services. We have not proposed rules that 
directly affect providers of caller ID spoofing services, however, the 
NPRM requests comment on whether the Commission can and should adopt 
rules imposing obligations on providers of caller ID spoofing services. 
We are not aware of any attempts to quantify the number of caller ID 
spoofing services and we have not identified a feasible way to quantify 
the number of such entities.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    12. The proposed rules prohibit any person or entity acting with 
the intent to defraud, cause harm, or wrongfully obtain anything of 
value from knowingly causing a caller ID service to alter or manipulate 
caller ID information. That prohibition does not distinguish between 
large businesses and entities, small businesses and entities, or 
individuals. The NPRM does not propose rules that include any reporting 
or record keeping requirements. However, the NPRM does invite comment 
on whether the Commission can and should adopt rules imposing 
obligations, including record keeping and reporting obligations, on 
providers of caller ID spoofing services when they are not themselves 
acting with intent to defraud, cause harm, or wrongfully obtain 
anything of value. Certain providers of caller ID spoofing services may 
be considered small businesses or small entities.

E. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    13. The Truth in Caller ID Act, which prohibits anyone in the 
United States from causing any caller identification service to 
knowingly transmit misleading or inaccurate caller ID information with 
the intent to defraud, cause harm, or wrongfully obtain anything of 
value, does not distinguish between small entities and other entities 
and individuals. The Commission has sought comment on the benefits and 
economically adverse burdens, including the burdens on small entities, 
of adopting the proposed rules implementing the provisions of the Truth 
in Caller ID Act. In addition the Commission seeks comment, focused on 
the issue of reducing economically adverse impact of the proposed rules 
on small entities, on alternatives to any proposed rule, or of 
alternative ways of implementing any proposed rule.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    14. None.

List of Subjects

47 CFR Part 1

    Penalties.

[[Page 16374]]

47 CFR Part 64

    Communications common carriers, Caller identification information, 
Telecommunications, Telegraph, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 1 and 64 as 
follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1, of Title 47 of the Code of 
Federal Regulation is revised to read as follows:

    Authority: 15 U.S.C. 79 et seq; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 227, 303(r), and 309.


Sec.  1.80  [Amended]

    2. Amend section 1.80 as follows:
    a. Designate the undesignated paragraph following (a)(4) as ``Note 
to Paragraph (a)'' and revise it;
    b. Redesignate paragraphs (a)(4), (b)(3), (b)(4), (b)(5), and 
(c)(3), as paragraphs (a)(5), (b)(4); (b)(5), (b)(6), and (c)(4), 
respectively;
    c. Redesignate ``Note to Paragraph (b)(4)'' as ``Note to paragraph 
(b)(5)'';
    d. Add new paragraphs (a)(4), (b)(3), and (c)(3);
    e. Revise redesignated paragraph (b)(4); and
    f. Revise paragraph (d).


Sec.  1.80  Forfeiture proceedings.

    (a) * * *
    (4) Violated any provision of section 227(e) of the Communications 
Act or of the rules issued by the Commission under section 227(e) of 
the Act; or

    Note to pararaph (a): A forfeiture penalty assessed under this 
section is in addition to any other penalty provided for by the 
Communications Act, except that the penalties provided for in 
paragraphs (b)(1), (b)(2), (b)(3), (b)(4) of this section shall not 
apply to conduct which is subject to a forfeiture penalty or fine 
under sections 202(c), 203(e), 205(b), 214(d), 219(b), 220(d), 
223(b), 364(a), 364(b), 386(a), 386(b), 506, and 634 of the 
Communications Act. The remaining provisions of this section are 
applicable to such conduct.

* * * * *
    (b) * * *
    (3) Any person determined to have violated section 227(e) of the 
Communications Act or of the rules issued by the Commission under 
section 227(e) of the Communications Act shall be liable to the United 
States for a forfeiture penalty of not more than $10,000 for each 
violation or three times that amount for each day of a continuing 
violation, except that the amount assessed for any continuing violation 
shall not exceed a total of $1,000,000 for any single act or failure to 
act. Such penalty shall be in addition to any other forfeiture penalty 
provided for by the Communications Act.
    (4) In any case not covered by paragraphs (b)(1), (b)(2) or (b)(3) 
of this section, the amount of any forfeiture penalty determined under 
this section shall not exceed $16,000 for each violation or each day of 
a continuing violation, except that the amount assessed for any 
continuing violation shall not exceed a total of $112,500 for any 
single act or failure to act described in paragraph (a) of this 
section.
* * * * *
    (c) * * *
    (3) In the case of a forfeiture imposed under section 227(e), no 
forfeiture will be imposed if the violation occurred more than 2 years 
prior to the date on which the appropriate notice is issued.
    (d) Preliminary procedure in some cases; citations. Except for a 
forfeiture imposed under subsection 227(e)(5) of the Act, no forfeiture 
penalty shall be imposed upon any person under this section of the Act 
if such person does not hold a license, permit, certificate, or other 
authorization issued by the Commission, and if such person is not an 
applicant for a license, permit, certificate, or other authorization 
issued by the Commission, unless, prior to the issuance of the 
appropriate notice, such person:
    (1) Is sent a citation reciting the violation charged;
    (2) Is given a reasonable opportunity (usually 30 days) to request 
a personal interview with a Commission official, at the field office 
which is nearest to such person's place of residence; and
    (3) Subsequently engages in conduct of the type described in the 
citation.
    However, a forfeiture penalty may be imposed, if such person is 
engaged in (and the violation relates to) activities for which a 
license, permit, certificate, or other authorization is required or if 
such person is a cable television operator, or in the case of 
violations of section 303(q), if the person involved is a nonlicensee 
tower owner who has previously received notice of the obligations 
imposed by section 303(q) from the Commission or the permittee or 
licensee who uses that tower. Paragraph (c) of this section does not 
limit the issuance of citations. When the requirements of this 
paragraph have been satisfied with respect to a particular violation by 
a particular person, a forfeiture penalty may be imposed upon such 
person for conduct of the type described in the citation without 
issuance of an additional citation.
* * * * *

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    3. The authority citation for part 64 is revised to read as 
follows:

    Authority: 47 U.S.C. 154, 254(k), 227; secs. 403(b)(2)(B), (c), 
Pub. L. 104-104, 100 Stat. 56. Interpret or apply 47 U.S.C. 201, 
218, 222, 225, 226, 207, 228, and 254(k) unless otherwise noted.

    4. Section 64.1600 is amended by redesignating paragraphs (c), (d), 
(e) and (f) as paragraphs (e), (f), (i) and (j) respectively and by 
adding new paragraphs (c), (d), (g), and (h) to read as follows:


Sec.  64.1600  Definitions.

* * * * *
    (c) Caller identification information. The term ``Caller 
identification information'' means information provided by a caller 
identification service regarding the telephone number of, or other 
information regarding the origination of, a call made using a 
telecommunications service or interconnected VoIP service.
    (d) Caller identification service. The term ``Caller identification 
service'' means any service or device designed to provide the user of 
the service or device with the telephone number of, or other 
information regarding the origination of, a call made using a 
telecommunications service or interconnected VoIP service. Such term 
includes automatic number identification services.
* * * * *
    (g) Information regarding the origination. The term ``Information 
regarding the origination'' means any:
    (1) Telephone number;
    (2) Portion of a telephone number, such as an area code;
    (3) Name;
    (4) Location information; or
    (5) Other information regarding the source or apparent source of a 
telephone call
    (h) Interconnected VoIP service. The term ``Interconnected VoIP 
service'' has the same meaning given the term ``Interconnected VoIP 
service'' in 47 CFR 9.3 as it currently exists or may hereafter be 
amended.


Sec.  64.1604  [Redesignated as Sec.  64.1605]

    5. Section 64.1604 is redesignated as Sec.  64.1605, and a new 
section 64.1604 is added to read as follows:

[[Page 16375]]

Sec.  64.1604  Prohibition on transmission of inaccurate or misleading 
caller identification information.

    (a) No person or entity in the United States, shall, with the 
intent to defraud, cause harm, or wrongfully obtain anything of value, 
knowingly cause, directly or indirectly, any caller identification 
service to transmit or display misleading or inaccurate caller 
identification information.
    (b) Exemptions. Paragraph (a) of this section shall not apply to:
    (1) Lawfully authorized investigative, protective, or intelligence 
activity of a law enforcement agency of the United States, a State, or 
a political subdivision of a State, or of an intelligence agency of the 
United States; or
    (2) Activity engaged in pursuant to a court order that specifically 
authorizes the use of caller identification manipulation.
    (c) A person or entity that blocks or seeks to block a caller 
identification service from transmitting or displaying that person or 
entity's own caller identification information shall not be liable for 
violating the prohibition in paragraph (a) of this section. This 
subsection does not relieve any person or entity that engages in 
telemarketing, as defined in Sec.  64.1200(f)(10) of the obligation to 
transmit caller identification information under Sec.  64.1601(e).

[FR Doc. 2011-6877 Filed 3-22-11; 8:45 am]
BILLING CODE 6712-01-P