Advanced Methods To Target and Eliminate Unlawful Robocalls, 56504 [2020-17268]
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Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Rules and Regulations
In opposing the proposal, the ABA
stated that defining a CSA as a ‘‘single
local community’’ is unreasonable and
unlawful. The ABA largely relied on the
District Court opinion, which was
unanimously reversed by the Circuit
Court. The ABA provided examples of
CSAs that it believes might not be a
WDLC and contended that CSAs have a
‘‘daisy-chain nature’’ in which opposite
ends have little connection. It then
stated that the Circuit Court indicated
that some CSAs might not be a WDLC
and thus could be challenged on an ‘‘as
applied’’ basis. The ABA further stated
that the term ‘‘local community’’ should
not automatically include a CSA.
Rather, it stated that any presumption
that a CSA is a local community should
be rebuttable. The ABA further stated
that the Board should not adopt these
provisions while litigation remains
pending, including the possibility of an
appeal to the Supreme Court.
After reviewing the comments in light
of the unanimous Circuit Court decision
to affirm the Board’s adoption of a CSA
as a presumptive community, the Board
has determined that it is appropriate
and consistent with the Act to amend
the Chartering Manual to allow a CSA
to be re-established as a presumptive
WDLC. Much of the ABA’s argument
relied on the District Court decision that
was unanimously rejected by the threejudge Circuit Court panel. In applying
Chevron, the Circuit Court stated: ‘‘We
appreciate the District Court’s
conclusions, made after a thoughtful
analysis of the Act. But we ultimately
disagree with many of them. In this
facial challenge, we review the rule not
as armchair bankers or geographers, but
rather as lay judges cognizant that
Congress expressly delegated certain
policy choices to the NCUA. After
considering the Act’s text, purpose, and
legislative history, we hold the agency’s
policy choices ‘entirely appropriate’ for
the most part. Chevron, 467 U.S. at
865.’’ 63 With respect to CSAs, the
Circuit Court, in rejecting the District
Court’s analysis, stated:
khammond on DSKJM1Z7X2PROD with RULES
In addition to being consistent with the
Act’s text, the Combined Statistical Area
definition rationally advances the Act’s
underlying purposes. In the 1998
amendments, Congress made two relevant
findings about purpose. First, legislators
found ‘‘essential’’ to the credit-union system
a ‘‘meaningful affinity and bond among
63 Am. Bankers Ass’n, 934 F.3d at 656. See also
with respect to CSAs: ‘‘The NCUA possesses vast
discretion to define terms because Congress
expressly has given it such power. But the authority
is not boundless. The agency must craft a
reasonable definition consistent with the Act’s text
and purposes; that is central to the review we apply
at Chevron’s second step. Here, the NCUA’s
definition meets the standard.’’ Id. at 664.
VerDate Sep<11>2014
17:41 Sep 11, 2020
Jkt 250001
members, manifested by a commonality of
routine interaction [;] shared and related
work experiences, interests, or activities [;] or
the maintenance of an otherwise wellunderstood sense of cohesion or identity.’’
§ 2, 112 Stat. at 914. Second, Congress
highlighted the importance of ‘‘credit union
safety and soundness,’’ because a credit
union on firm financial footing ‘‘will enhance
the public benefit that citizens receive.’’ 64
The Circuit Court explicitly rejected
the ABA’s assertion that CSAs have a
‘‘daisy chain’’ nature, linking multiple
metropolitan areas that have nothing to
do with those at opposite ends of the
chain. As the court stated:
[T]he NCUA’s definition does not readily
create general, widely dispersed regions. Cf.
First Nat’l Bank III, 522 U.S. at 502
(indicating that community credit unions
may not be ‘composed of members from an
unlimited number of unrelated geographical
units’. Combined Statistical Areas are
geographical units well-accepted within the
government. See [81 FR at 88414]. Because
they essentially are regional hubs, the
Combined Statistical Areas concentrate
around central locations. . . . The NCUA
rationally believed that such ‘real-world
interconnections would qualify as the type of
mutual bonds suggested by the term ‘local
community.’ . . . Thus, the agency
reasonably determined that Combined
Statistical Areas ‘‘simply unif[y], as a single
community,’’ already connected neighboring
regions. [See 81 FR at 88,415.] 65
The ABA’s misinterpretation of the
Chevron doctrine was further
repudiated by the entire Circuit Court,
which rejected the ABA’s petition for a
rehearing en banc. The Board
emphasizes that the ABA repeatedly
misstates the regulatory framework for
approving a presumptive community,
both in its court filings and in its
comment letter on the proposed rule.
Under the regulatory provisions in the
Chartering Manual, established by
notice-and-comment rulemaking, there
is no automatic approval of an
application based on a CSA. Rather, an
applicant would have to establish in its
application that it can serve the entire
community, as documented in its
business and marketing plan. A further
constraint on any such CSA or portion
thereof is that its population cannot
exceed 2.5 million people. As the
Circuit Court noted:
We might well agree with the District Court
that the approval of such a geographical area
would contravene the Act. But even so, the
Association would need much more to
mount its facial pre-enforcement challenge in
this case. As the Supreme Court repeatedly
has held, ‘‘the fact that petitioner can point
to a hypothetical case in which the rule
might lead to an arbitrary result does not
64 Id.
65 Id.
PO 00000
at 665–66.
at 666–67.
Frm 00034
Fmt 4700
render the rule’’ facially invalid. Am. Hosp.
Ass’n v. NLRB, 499 U.S. 606, 619 (1991); see
also EPA v. EME Homer City Generation, L.P.
(EME Homer), 572 U.S. 489, 524 (2014) (‘‘The
possibility that the rule, in uncommon
particular applications, might exceed [the
agency]’s statutory authority does not
warrant judicial condemnation of the rule in
its entirety.’’); INS v. Nat’l Ctr. for
Immigrants’ Rights, Inc., 502 U.S. 183, 188
(1991) (‘‘That the regulation may be invalid
as applied in s[ome] cases . . . does not
mean that the regulation is facially invalid
because it is without statutory authority.’’);
cf. Barnhart v. Thomas, 540 U.S. 20, 29
(2003) (‘‘Virtually every legal (or other) rule
has imperfect applications in particular
circumstances.’’).
Here, the Association’s complaint and
the District Court’s accompanying worry
strike us as too conjectural. The NCUA
must assess the ‘‘economic advisability
of establishing’’ the proposed credit
union before approving it, [12 U.S.C.
1754], and as part of the assessment, the
organizers must propose a ‘‘realistic’’
business plan showing how the
institution and its branches would serve
all members in the local community, see
[12 CFR. part 701, app. B, ch. 1 section
IV.D.] The Association has failed to
demonstrate the plausibility of a local
community that is defined like the
hypothetical narrow, multi-state strip
and accompanies a realistic business
plan. And if the agency were to receive
and approve such an application, a
petitioner can make an as-applied
challenge. See, e.g., EME Homer, 572
U.S. at 523–24; Buongiorno, 912 F.2d at
510.66
Thus, existing regulatory provisions
guard against the extreme examples
posited by the ABA, which claims
incorrectly that the Board must approve
them under the Chartering Manual. The
Board agrees with the ABA and the
Circuit Court that any application for a
presumptive community, including one
based on a CSA, can be challenged on
an as applied, case-by-case basis. Given
this regulatory framework, which is
subject to judicial review, the Board
agrees with the Circuit Court’s reasoning
in concluding that re-establishing the
CSA as a presumptive community is
entirely consistent with the express
authority delegated to the Board by
Congress. This provision also advances
the Act’s dual purposes of promoting
common bonds while addressing safety
and soundness considerations by
ensuring that FCUs remain
economically viable.
66 Id.
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at 668.
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]]>Agencies
[Federal Register Volume 85, Number 178 (Monday, September 14, 2020)]
[Rules and Regulations]
[Page 56504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17268]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 17-59; FCC 20-96; FRS 16971]
Advanced Methods To Target and Eliminate Unlawful Robocalls
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission adopts two safe harbors for
voice service providers that block calls in certain situations, and
adopts certain measures to ensure that erroneous blocking is quickly
remedied. Specifically, the Commission adopts a safe harbor from
liability under the Communications Act and the Commission's rules for
terminating voice service providers that block calls on an opt-out
basis based on reasonable analytics designed to identify unwanted
calls, so long as those take into account information provided by
caller ID authentication where available for a particular call. Second,
the Commission adopts a safe harbor enabling voice service providers to
block traffic from bad-actor upstream voice service providers that
continue to allow unwanted calls to traverse their networks. Finally,
the Commission requires that blocking providers furnish a single point
of contact to resolve unintended or inadvertent blocking, and
emphasizes that, when blocking, they should make all reasonable efforts
to ensure that critical calls, such as those from Public Safety
Answering Points (PSAPs), are not blocked and that they should never
block calls to 911. These rules both respond to voice service providers
that seek assurance that their good-faith blocking will not result in
liability if they inadvertently block wanted calls and implement the
call blocking provisions of the TRACED Act, and provide safeguards
against erroneous blocking.
DATES: Effective October 14, 2020.
FOR FURTHER INFORMATION CONTACT: Jerusha Burnett, Consumer Policy
Division, Consumer and Governmental Affairs Bureau, email at
[email protected] or by phone at (202) 418-0526.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, in CG Docket No. 17-59, FCC 20-96, adopted on July 16, 2020,
and released on July 17, 2020. The Further Notice of Proposed
Rulemaking that was adopted concurrently with the Report and Order
published July 31, 2020 at 85 FR 46063. The full text of document FCC
20-96 is available for public inspection and copying via the
Commission's Electronic Comment Filing System (ECFS). The full text of
document FCC 20-96 and any subsequently filed documents in this matter
may also be found by searching ECFS at: https://apps.fcc.gov/ecfs/
(insert CG Docket No. 17-59 into the Proceeding block). To request
materials in accessible formats for people with disabilities (Braille,
large print, electronic files, audio format), send an email to
[email protected], or call the Consumer and Governmental Affairs Bureau at
(202) 418-0530 (voice).
Final Paperwork Reduction Act of 1995 Analysis
The Report and Order does not contain any new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995, Public Law 104-13. It, therefore, does not contain any new
or modified 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).
Congressional Review Act
The Commission sent a copy of the Report and Order to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
Synopsis
1. With the Report and Order, the Commission takes specific and
concrete steps to further protect consumers against unwanted calls. The
Commission adopts a safe harbor from liability under the Communications
Act and its rules for terminating voice service providers that block
calls based on reasonable analytics designed to identify unwanted
calls, so long as those take into account information provided by STIR/
SHAKEN (or, for non-IP based calls, any other effective call
authentication framework that satisfies the Pallone-Thune Telephone
Robocall Abuse Criminal Enforcement And Deterrence (TRACED) Act) when
such information is available for a particular call. And the Commission
establishes a second safe harbor enabling voice service providers to
block traffic from bad-actor upstream voice service providers that
continue to allow unwanted calls to traverse their networks. Finally,
the Commission requires that blocking providers furnish a single point
of contact to resolve unintended or inadvertent blocking, and
emphasizes that, when blocking, they should make all reasonable efforts
to ensure that critical calls, such as those from PSAPs, are not
blocked and that they should never block calls to 911.
Safe Harbors
2. Consistent with the TRACED Act and in light of the record
garnered in response to the Commission's Call Blocking Declaratory
Ruling and Further Notice, the Commission adopts two safe harbors from
liability under the Communications Act and the Commission's rules for
certain call blocking by voice service providers. The first is a call-
by-call safe harbor based on reasonable analytics including caller ID
authentication information. The second safe harbor targets bad-actor
upstream voice service providers who do not police their networks to
minimize bad traffic after being notified of such traffic.
3. Scope of Safe Harbor Protection. The safe harbors the Commission
establishes here will protect blocking providers from liability arising
from any obligations related to completing the call under the
Communications Act and the Commission's rules.
Safe Harbor Based on Reasonable Analytics
4. First, the Commission adopts a safe harbor from liability under
the Communications Act and the Commission's rules for the unintended or
inadvertent blocking of wanted calls where terminating voice service
providers block based on reasonable analytics that include caller ID
authentication information and the consumer is given the opportunity to
opt out. Consistent with the Commission's statement in the Call
Blocking Declaratory Ruling, published at 84 FR 29387, June 24, 2019,
and Further Notice (NPRM), published at 84 FR 29478, June 24, 2019; and
Congress' guidance in the TRACED Act, the Commission requires
terminating voice service providers that take advantage of this safe
harbor to offer these services without a line-item charge to consumers.
5. Caller ID Authentication Requirement. To avail themselves of the
safe harbor, terminating voice service providers must incorporate
caller ID authentication information into their reasonable analytics
programs. At this time, only the STIR/SHAKEN caller ID authentication
framework satisfies this requirement. As the Commission explains,
however, should it later identify other effective caller ID
authentication methods that would satisfy the TRACED Act, including
non-IP methods, those methods would also satisfy its requirements here.
6. At a minimum, a terminating voice service provider seeking safe
harbor protection must have deployed an effective caller ID
authentication framework within their own network, accept caller ID
authentication information transmitted by an upstream voice service
provider, and incorporate that information into its analytics where
that information is available. The terminating voice service provider
may also rely on this safe harbor even when blocking calls where caller
ID authentication information is not available, so long as it
incorporates caller ID authentication information into its analytics
wherever possible.
7. In recognition of commenter concerns, and of the need to adapt
to evolving threats, the Commission gives terminating voice service
providers flexibility in how to incorporate authentication into their
analytics. They may, for example, take into account the level of
attestation, including looking at what level of attestation has
historically been present where such data is available. The Commission
reiterates that voice service providers must apply analytics reasonably
in a non-discriminatory, competitively neutral manner.
8. The TRACED Act acknowledges that voice service providers'
ability to deploy STIR/SHAKEN varies because, in part, it is not
designed to work on non-IP networks. As a result, this requirement
means that terminating voice service providers with exclusively non-IP
based networks will not be able to avail themselves of the safe harbor
immediately. Should industry develop alternative caller ID
authentication technologies that it later determines satisfy this
requirement under the TRACED Act, those technologies would also be
sufficient to claim the safe harbor. Further, the Commission recognizes
that all terminating voice service providers are likely to receive
calls from upstream voice service providers with non-IP networks. If a
portion of the calls received by the terminating voice service provider
are authenticated and the terminating voice service provider is
verifying those calls and incorporating that information into a program
of reasonable analytics, the safe harbor would still be available for
the blocking of calls from non-IP networks. Limiting the safe harbor to
authenticated calls could encourage bad actors to ensure that their
calls originate or transit on non-IP networks, undermining the value of
the safe harbor.
Safe Harbor for Blocking of Bad-Actor Providers
9. The Commission clarifies that voice service providers may block
calls from certain bad-actor upstream voice service providers and
establishes a safe harbor from liability related to call completion
obligations arising under the Communications Act and the Commission's
rules for this blocking. Unlike the reasonable analytics safe harbor,
the Commission focuses here on criteria that clearly indicate a
particular upstream voice service provider is facilitating, or at a
minimum shielding, parties originating illegal calls.
10. Permitting Provider-Based Blocking. Until very recently, the
Commission has only authorized call blocking for particular calls, not
based on the provider. Here, the Commission clarifies that voice
service providers are permitted to block calls from ``bad-actor''
upstream voice service providers. Specifically, the Commission makes
clear that a voice service provider may block calls from an upstream
voice service provider that, when notified that it is carrying bad
traffic by the Commission, fails to effectively mitigate such traffic
or fails to implement effective measures to prevent new and renewing
customers from using its network to originate illegal calls. The
notification from the Commission will be based on information obtained
through traceback, likely in coordination with the Traceback
Consortium. Failure of the bad-actor provider to sign calls may be an
additional factor in this notification.
11. Notification and Effective Mitigation Measures. If the
Commission identifies illegal traffic on the network, it may notify the
voice service provider that it is passing identified bad traffic and
that specific calls are illegal. Upon receipt of this notification, the
voice service provider should promptly investigate and, if necessary,
prevent the illegal caller from continuing to use the network to place
illegal calls. If the upstream voice service provider fails to take
effective mitigation measures within 48 hours, a voice service provider
may then, after notifying the Commission as discussed below, block
calls from this bad-actor provider. Similarly, if the upstream voice
service provider fails to implement effective measures to prevent new
and renewing customers from using its network to originate illegal
calls, a voice service provider may also block calls from this bad-
actor provider.
12. A notified voice service provider should inform the Commission
and the Traceback Consortium within 48 hours of steps it has taken to
mitigate the illegal traffic. A voice service provider that is aware of
the notice provided to an upstream voice service provider must consider
whether the steps taken were sufficient to effectively mitigate the
identified bad traffic. The Commission declines to mandate specific
metrics to make this determination, but expects that they will
generally involve a significant reduction in the traffic stemming from
a particular illegal calling campaign or regarding calls from the
particular upstream voice service provider. The voice service provider
may meet this criterion if it determines, in good faith and upon a
rational basis, that the upstream voice service provider has failed to
effectively mitigate the illegal traffic. The Commission expects the
voice service provider to inform the upstream voice service provider of
that determination in order to give the upstream voice service provider
another opportunity to take further mitigation steps. In addition,
before taking any action to block calls of the upstream voice service
provider, a voice service provider must provide the Commission with
notice and a brief summary of its basis for making such a
determination. By obtaining such information from both parties, the
Commission will be in a position to monitor the actions of both parties
prior to commencement of any blocking.
13. A notified voice service provider should also inform the
Commission and the Traceback Consortium within a reasonable period of
time of the steps it takes to prevent new and renewing customers from
originating illegal calls. Failure to provide this information within a
reasonable time shall be equivalent to having failed to have effective
measures in place for purposes of the safe harbor. Where upstream voice
service providers disclose their measures, a voice service provider may
in good faith assess whether the measures are effective based on
objective criteria, such as whether customers can show a legitimate
business need for those services. Again, before taking any action to
block calls of the upstream voice service provider, a voice service
provider must provide the Commission with notice and a brief summary of
its basis for making such a determination.
14. Risk of Legal Calls Being Blocked. The Commission finds that
the benefits of this safe harbor outweigh the potential costs of
blocking some legal calls in the process. Voice service providers are
in the best position to detect and combat this problem. Accordingly,
the Commission believes that enabling voice service providers to use
all available technologies and methodologies at their disposal without
fear of liability is crucial to combat illegal calls. This safe harbor
encourages voice service providers to both mitigate bad traffic once
they have actual notice of that traffic, and to take proactive steps to
prevent their networks from being used to transmit illegal calls.
Protections Against Erroneous Blocking
15. Protections for Critical Calls. The Commission requires that
all voice service providers must make all reasonable efforts to ensure
that calls from PSAPs and government outbound emergency numbers are not
blocked.
16. Calls to PSAPs via 911 are also extremely important and the
Commission makes clear that they should never be blocked unless the
voice service provider knows without a doubt that the calls are
unlawful. Though some unwanted and illegal calls may reach 911 call
centers, the Commission believes that 911 call centers themselves are
best equipped to determine how to handle the calls they receive.
17. Point of Contact for Blocking Disputes. The Commission requires
that any voice service provider that blocks calls must designate a
single point of contact for callers, as well as other voice service
providers, to report blocking errors at no charge to callers or other
voice service providers.
18. Blocking providers must investigate and resolve these blocking
disputes in a reasonable amount of time and at no cost to the caller,
so long as the complaint is made in good faith. What amount of time is
``reasonable'' may vary depending on the specific circumstances of the
blocking and the resolution of the blocking dispute, and pending
further developments in the record Blocking providers must also publish
contact information clearly and conspicuously on their public-facing
websites. The Commission further requires that when a caller makes a
credible claim of erroneous blocking and the voice service provider
determines that the calls should not have been blocked, a voice service
provider must promptly cease blocking calls from that number unless
circumstances change. Finally, because the TRACED Act requires that the
establishment of a safe harbor be consistent with the Act's requirement
of ``transparency and effective redress options,'' the Commission
confirms that implementation of these redress mechanisms is a condition
of obtaining the protections of the safe harbors it establishes in the
Report and Order.
19. Consistent with what the Commission permitted in June 2019,
consumers may choose, either via opt in or opt out consent, to have
their terminating voice service provider block categories of calls that
may include legal calls. In these cases, terminating voice service
providers are not obliged to cease blocking such calls merely because
the caller claims they are legal. Rather, a terminating voice service
provider's analysis should hinge on whether the disputed calls fit
within the blocking categories to which their customers have consented.
20. No Critical Calls List at this Time. The Commission declines to
adopt a Critical Calls List at this time, in light of a record largely
in opposition and in recognition that such a list would likely to do
more harm than good. The Commission does not, however, foreclose the
possibility of adopting such a list at a future point in time should
circumstances change.
Final Regulatory Flexibility Analysis
21. As required by the Regulatory Flexibility Act of 1980 (RFA), as
amended, an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated into the Declaratory Ruling and Further Notice. The
Commission sought written public comment on the proposals in the NPRM,
including comment on the IRFA. The comments received are discussed
below. The Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.
Need for, and Objectives of, the Order
22. The Report and Order takes important steps in the fight against
illegal robocalls by enabling terminating voice service providers to
block certain calls before they reach consumers' phones while also
requiring certain protections for lawful calls. The rules the
Commission adopts today outline two safe harbors for terminating voice
service providers that block calls in these circumstances. First, the
Report and Order establishes a safe harbor for terminating voice
service providers that block calls on a default, opt-out, basis based
on reasonable analytics so long as those analytics include caller ID
authentication information and the customer is given sufficient
information to make an informed choice. Second, it establishes a safe
harbor for voice service providers that block and then cease accepting
all traffic from an upstream voice service provider that, when notified
that it is carrying bad traffic by the Commission, fails to effectively
mitigate such traffic or fails to implement effective measures to
prevent new and renewing customers from using its network to originate
illegal calls. The Report and Order also adopts rules to ensure that
callers and other voice service providers can resolve potential
erroneous blocking and to require all voice service providers to make
all reasonable efforts to ensure that critical calls complete.
23. Reasonable Analytics. The Report and Order provides a safe
harbor from liability under the Communication Act and the Commission's
rules for voice service providers that block calls based on reasonable
analytics that must include Caller ID authentication information, so
long as consumers are given a meaningful opportunity to opt out. This
safe harbor builds on the blocking the Commission made clear was
permitted under the Declaratory Ruling and Further Notice and adds the
requirement that voice service provides incorporate Caller ID
authentication information into their analytics programs.
24. Bad Actor Providers. Additionally, the Report and Order
establishes a safe harbor for terminating voice service providers that
block calls from upstream voice service providers that, when notified
that it is carrying bad traffic by the Commission, fails to effectively
mitigate such traffic or fails to implement effective measures to
prevent new and renewing customers from using its network to originate
illegal calls. This safe harbor incentivizes bad-actor providers to
better police their networks by raising the cost of passing bad
traffic.
25. Other Issues. The Report and Order clarifies that any
terminating voice service provider that blocks calls must designate a
single point of contact for callers to report blocking errors at no
charge. It further makes clear that blocking providers must investigate
and resolve these blocking disputes in a reasonable amount of time that
is consistent with industry best practices. To avoid abuse, the Report
and Order declines to mandate a Critical Calls List at this time. It
does, however, make clear that the Commission expects all voice service
providers will take all possible steps to ensure that calls from PSAPs
and government outbound emergency numbers are not blocked. Finally, it
makes clear that calls to 911 should never be blocked unless the voice
service provider knows without a doubt that the calls are unlawful.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
26. In the Declaratory Ruling and Further Notice, the Commission
solicited comments on how to minimize the economic impact of the new
rules on small business. The Commission received four comments either
directly referencing the IRFA or addressing small business concerns.
Two of these comments focused on concerns about the ability of small
businesses to implement STIR/SHAKEN and how this would impact the safe
harbors proposed in the Further Notice. The remaining two comments
focused on small business challenge mechanism issues.
27. SHAKEN/STIR. Both ITTA and Spoofcard raised concerns about safe
harbors contingent on SHAKEN/STIR, noting that many small voice service
providers have TDM networks and therefore will not be able to implement
SHAKEN/STIR quickly. ITTA instead argues for a safe harbor for blocking
based on reasonable analytics, while Spoofcard simply argues against
blocking based solely on SHAKEN/STIR. The Commission recognizes that
some small voice service providers will not be able to implement
SHAKEN/STIR quickly. The first safe harbor the Commission adopts in the
Report and Order does not prevent these voice service providers from
blocking pursuant to the Declaratory Ruling. Additionally, as other
effective Caller ID authentication technologies are developed, they may
also satisfy the requirements of the first safe harbor. Finally,
neither safe harbor the Commission adopts permits blocking solely on
SHAKEN/STIR.
28. Challenge Mechanisms. Capio highlighted the importance of a
robust challenge mechanism for small businesses. Both Capio and CUNA
called for this mechanism to be offered free of charge, with CUNA
noting that this is particularly important for small businesses such as
credit unions. In the Report and Order, the Commission requires
terminating voice service providers to designate a single point of
contact for resolving blocking disputes and make contact information
clear and conspicuous on their public-facing websites. The Commission
further requires terminating voice service providers to resolve
disputes in a reasonable amount of time, noting that what is reasonable
may vary on a case-by-case basis. Finally, the Commission requires that
this be offered at no charge to callers.
Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
29. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the proposed rules in this proceeding.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
30. The Report and Order makes clear that voice service providers
may block calls in certain circumstances and provides safe harbors for
that blocking. The Report and Order also adopts certain protections for
lawful callers. These changes affect small and large companies equally
and apply equally to all the classes of regulated entities identified
above.
31. Reporting and Recordkeeping Requirements. The Report and Order
establishes blocking safe harbors that will require terminating
providers that choose to block to maintain certain records to ensure
that their blocking is in compliance with the safe harbor. The specific
records that a terminating provider would need to retain will depend on
the particular safe harbor the terminating provider is relying on as
well as their specific blocking program. Terminating providers that
choose to block calls based on reasonable analytics including caller ID
authentication information will need to maintain records on calls
blocked, as well as opt-out decisions made by consumers. These records
are necessary to ensure that opt-out requests are honored and to aid in
resolving blocking disputes. Terminating providers that choose to block
all calls from a bad-actor upstream provider will need to retain
information relevant to that decision to ensure that all requirements
were met prior to blocking and to help respond to blocking disputes.
Originating, intermediate, and terminating providers will also need to
communicate with other providers regarding traceback, illegal traffic,
and measures to prevent new customers from originating illegal traffic.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
32. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its approach, which may
include the following four alternatives, among others: (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
33. The Commission considered feedback from the Declaratory Ruling
and Further Notice in crafting the final order. The Commission
evaluated the comments with the goal of removing regulatory roadblocks
and giving industry the flexibility to block calls while still
protecting the interests of lawful callers. For example, the rules the
Commission adopts are permissive rather than mandatory, allowing small
businesses to determine whether, and what type of, blocking is the
correct approach for their network. A terminating provider may choose
to block based on reasonable analytics, including caller ID
authentication information, and benefit from that safe harbor. Should a
terminating provider do so, they have flexibility to design their own
reasonable analytics program and make that program either opt out or
opt in. Alternatively, or in addition to that blocking, a terminating
provider may choose to block all calls from an originating or
intermediate provider that fails to meet the criteria the Commission
lays out in the bad-actor provider safe harbor. The Commission
recognizes small business concerns regarding the difficulty of
deploying SHAKEN/STIR. Small businesses that cannot rapidly deploy
SHAKEN/STIR have alternative blocking options, such as those from the
Declaratory Ruling and Further Notice to ensure that they are not left
behind. The Commission further took the concerns of small business into
consideration in establishing the requirements to make challenging
erroneous blocking simpler and at no cost to the caller.
34. The Commission does not see a need to establish a special
timetable for small entities to reach compliance with the modification
to the rules. No small business has asked for a delay in implementing
the rules. Small businesses may avoid compliance costs entirely by
declining to block robocalls, or may delay implementation of call
blocking indefinitely to allow for more time to come into compliance
with the rules. Similarly, there are no design standards or performance
standards to consider in this rulemaking.
The Commission will send a copy of the Report and Order, including
this FRFA, in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act.
Ordering Clauses
35. Pursuant to sections 4(i), 201, 202, 227, 227b, 251(e), 303(r),
and 403 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 201, 202, 227, 227b, 251(e), 303(r), and 403, the Report and
Order is adopted and that part 64 of the Commission's rules, 47 CFR
64.1200, is amended.
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 201, 202, 217, 218, 220, 222, 225,
226, 227, 227b, 228, 251(a), 251(e), 254(k), 262, 403(b)(2)(B), (c),
616, 620, 1401-1473, unless otherwise noted; Pub. L. 115-141, Div.
P, sec. 503, 132 Stat. 348, 1091.
0
2. Amend Sec. 64.1200 by
0
a. Adding paragraph (f)(17);
0
b. Revising paragraph (k) introductory text, paragraphs (k)(3) and (4)
and adding paragraphs (k)(5) through (8).
The additions and revisions read as follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(f) * * *
(17) The term effectively mitigate means identifying the source of
the traffic and preventing that source from continuing to originate
traffic of the same or similar nature.
* * * * *
(k) Voice service providers may block calls so that they do not
reach a called party as follows:
* * * * *
(3) A terminating provider may block a voice call without liability
under the Communications Act or the Commission's rules where:
(i) Calls are blocked based on the use of reasonable analytics
designed to identify unwanted calls;
(ii) Those analytics include consideration of caller ID
authentication information where available;
(iii) A consumer may opt out of blocking and is provided with
sufficient information to make an informed decision;
(iv) All analytics are applied in a non-discriminatory,
competitively neutral manner;
(v) Blocking services are provided with no additional line-item
charge to consumers; and
(vi) The terminating provider provides, without charge to the
caller, the redress requirements set forth in paragraph (k)(8) of this
section.
(4) A provider may block voice calls or cease to accept traffic
from an originating or intermediate provider without liability under
the Communications Act or the Commission's rules where the originating
or intermediate provider, when notified by the Commission, fails to
effectively mitigate illegal traffic within 48 hours or fails to
implement effective measures to prevent new and renewing customers from
using its network to originate illegal calls. Prior to initiating
blocking, the provider shall provide the Commission with notice and a
brief summary of the basis for its determination that the originating
or intermediate provider meets one or more of these two conditions for
blocking.
(5) A provider may not block a voice call under paragraphs (k)(1)
through (4) of this section if the call is an emergency call placed to
911.
(6) A provider may not block calls under paragraphs (k)(1) through
(4) of this section unless that provider makes all reasonable efforts
to ensure that calls from public safety answering points and government
emergency numbers are not blocked.
(7) For purposes of this section, a provider may rely on Caller ID
information to determine the purported originating number without
regard to whether the call, in fact originated from that number.
(8) Any terminating provider blocking pursuant to this subsection
must provide a single point of contact, readily available on the
terminating provider's public-facing website, for handling call
blocking error complaints and must resolve disputes within a reasonable
time. When a caller makes a credible claim of erroneous blocking and
the terminating provider determines that the calls should not have been
blocked, the terminating provider must promptly cease blocking calls
from that number unless circumstances change. The terminating provider
may not impose any charge on callers for reporting, investigating, or
resolving blocking error complaints.
[FR Doc. 2020-17268 Filed 9-11-20; 8:45 am]
BILLING CODE 6712-01-P
