In a victory for Facebook, but what some legislators call a misinterpretation that could open the robocall floodgates, the Supreme Court has ruled unanimously that its automatic texting regime for informing a user when someone is trying to log into their account from a new device does not violate the Telephone Consumer Protection Act.

Also Read: FCC Adopts Robocall Safe Harbors

Some top Democrats said the court decision was a disaster and they were preparing legislation to reverse it.

Facebook had been the subject of a class action suit over that texting regime alleging that it violated the TCPA because it maintained a database that stored numbers to be automatically dialed. Facebook said it was not using a "random or sequential number generator," which is what the TCPA restricts.

Also Read: Congress Is Looking to Arm Robo Cops

The Ninth Circuit court of Appeals sided with the plaintiffs that dialing automatically stored numbers triggered the TCPA restriction. But the Supremes disagreed.

The decision hinged on grammar, with the Supreme Court concluding that under the TCPA an automatic dialing system must be able either to store a random number using a random or sequential number generator or produce a number with such a generator. Facebook said since it is not randomly generating numbers its autodialer is OK. The Supremes agreed.

"The statutory context confirms that the TCPA’s autodialer definition excludes equipment that does not use a random or sequential number generator," said the court. "Congress’ chosen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook’s login notification system, which does not use such technology."

Justice Sonia Sotomayor delivered the opinion, which did not sit with some TCPA fans on the Hill.

In a joint statement, Rep. Anna Eshoo (D-Calif.) and Sen. Ed Markey (D-Mass.) slammed the court's narrow interpretation of autodialer as a disastrous decision and accused the court of abandoning consumers to what will be a flood of robocalls.

Also Read: FCC Tells Robocallers No More Warnings

"It was clear when the TCPA was introduced that Congress wanted to ban dialing from a database. By narrowing the scope of the TCPA, the Court is allowing companies the ability to assault the public with a non-stop wave of unwanted calls and texts, around the clock," they said in a joint statement. 

“Fortunately, we can and will act to make right what the Supreme Court got wrong. We plan to soon introduce legislation to amend the TCPA, fix the Court’s error, and protect consumers. If the Justices find their private mobile phones ringing non-stop from now until our legislation becomes law, they’ll only have themselves to blame." 

Markey and Eshoo had joined in an amicus brief in the case calling on the court to uphold the Ninth Circuit, but that call went unanswered.

The FCC is launching a Hospital Robocall Protection Group and soliciting nominations for membership. 

The group will advise the FCC on ways to combat unwanted robocalls to hospitals, which is apparently an issue. 

"The idea that robocallers would clog up hospital phone lines with a flood of nuisance calls seems unthinkable, but it is a reality,” said FCC chairman Ajit Pai. “Health care facilities are critically important, especially in the face of the current pandemic, and the last thing they should have to worry about is receiving robocalls that distract from performing their mission—supporting the health and well-being of all Americans." 

The FCC is looking for nominations ASAP, but no later than May 1. 

FCC chair Ajit Pai Friday said he is scheduled a vote at the March 31 meeting on a proposal to mandate the STIR/SHAKEN (the FCC used to call it SHAKEN/STIR) caller authentication regime, which is a way to allow for default blocking of robocalls. The proposal would give carriers, including cable ops delivering IP phone service, until June 30, 2021 to comply. 

The FCC is under a congressional mandate to require STIR/SHAKEN, which it had initially said was voluntary, but with the expectation that all carriers would volunteer.  

Related: Broadband Associations Push for Robocall Safe Harbor 

"In December 2019, Congress passed and the President signed into law the TRACED Act, which directs the Commission to require voice service providers to implement STIR/SHAKEN in their networks within 18 months of the law’s enactment," Pai's office pointed out in announcing the upcoming vote. 

Related: Pai Warns of SHAKEN/STIR Mandate 

"Last year, I demanded that major phone companies voluntarily deploy STIR/SHAKEN, and a number of them did," said the chairman. "But it’s clear that FCC action is needed to spur across-the-board deployment of this important technology. There is no silver bullet when it comes to eradicating robocalls, but this is a critical shot at the target.” 

The item also includes a Notice of Proposed Rulemaking on whether to give smaller carriers one-year extensions per the TRACED Act, which among other things requires such caller authentication to be provided fee to customers, something the FCC also anticipated but did not mandate in allowing such default robocall blocking by carriers. 

The major broadband associations got together to propose the safe harbor they are seeking from liability for "unintentionally or inadvertently blocked, mislabeled, or misidentified" calls in its effort to stem illegal robocalls. 

Both the FCC and Congress are requiring broadband voice providers to implement default robocall blocking (the SHAKEN/STIR regime). 

Related: Robocall Bill Headed to President's Desk 

In a meeting with FCC staffers last week, according to FCC documents, representatives of CTIA, NCTA-The Internet & Television Association and USTelecom said that the FCC needed to adopt a broad liability "safe harbor" based on "reasonable analytics." 

They noted that the FCC has given them "more tools" to battle illegal robocalls, they also needed some protection from liability for friendly fire, as it were. "[A] broad and flexible safe harbor is needed to enable voice service providers to take more aggressive actions to relieve consumers from the torrent of robocalls." (as the reporter was typing these words, he was hanging up the latest in a series of unwanted robocalls).

In the recently passed TRACED Act, which mandated default robocall blocking, a safe harbor was mandated by Dec. 30, with the FCC allowed to come up with the shape of that harbor. 

Related: Pai Dials Up Cross-Border SHAKEN/STIR First 

They want the FCC to create a harbor that fits good-faith efforts to block calls that might result in blocking legitimate calls. 

Helpfully, the groups also provided their own map to that safe harbor: 

Safe Harbor 

"A voice service provider that unintentionally or inadvertently blocked, mislabeled, or misidentified the level of trust for a call shall be deemed to be in compliance with the Communications Act of 1934, as amended, and the Commission’s rules, and shall not be liable in any enforcement action or adjudicative proceeding, including any civil action, if, at the time the provider blocked or mislabeled the call or misidentified the call’s level of trust: 

  i. "The blocking, labeling, or identification was initiated by the provider at the network level or was pursuant to tools offered to consumers on an opt-in or opt-out basis and was in connection with an event that the provider had a good-faith reason to believe was an illegal or unwanted robocall event because the provider took one or more reasonable action(s) including, but not limited to, the following: 

    A. "Performed research on the phone number to reasonably determine the call was highly likely to be an illegal robocall; 

    B. "Implemented reasonable procedures to block calls in a manner consistent with the Commission’s rules; or 

    C. "Utilized reasonable analytics, which may include information provided by call authentication frameworks. 

  ii. "The provider had procedures in place for blocking, labeling, or identification that were reasonably likely to confirm that calls blocked, labeled, or identified were limited to illegal or unwanted robocalls and the provider followed these procedures; 

  iii. "The provider had procedures in place to address reported incidents of unintentional or inadvertent blocking, mislabeling, or misidentification of such calls; and 

  iv. "The provider made reasonable efforts to avoid blocking, mislabeling, or misidentifying emergency public safety calls." 

Both sides of the aisle and the Hill were claiming victory, and sharing credit, for Senate passage of the bipartisan Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED Act), a bill that would mandate free default robocall blocking, something the FCC has authorized and pushed carriers to adopt by the end of the year anyway, threatening to mandate it if that didn't happen.

Related: Cable Ops Oppose Robocall Blocking Mandate

Among other things, the bill would give the FCC civil fining authority of up to $20,000 per call for those who "intentionally flout" telemarketing restrictions. That could add up given that, by some estimates, spam calls make up over 40% of all calls. It would also extend the statute of limitations for taking action against illegal robocalls from one year to three.

The bill would help punish bad actors--the FCC could seek financial penalties for misleading calls--and verify good calls, said its backers.

"President Expected to Sign Thune-Markey Bill to Crack Down on Illegal Robocalls," said a press release from the office of Sen. Ed Markey (D-Mass.) which pointed out that the senate first passed the bill in May, then the House passed a modified version in Dec. 4, and now the Senate had passed that House version and it was headed to the President's desk.

Related: House Approves Omnibus Robocall Bill

"The TRACED Act cracks down on scammers by requiring phone carriers to authenticate whether calls are legitimate, and then blocking unverified robocalls at no charge to consumers," said Markey. "I thank Senator [John] Thune [R-S.D.] for his unwavering partnership on this important consumer protection issue. I hope the President quickly signs this bill into law so that families can enjoy a new year of family calls instead of robocalls.”

On the House side, Energy and Commerce Committee chairman Frank Pallone, Jr. (D-N.J.), Republican Leader Greg Walden (R-Ore.), Communications Subcommittee chairman Mike Doyle (D-Pa.), and Subcommittee Republican Leader Bob Latta (R-Ohio) praised of the "Pallone-Thune TRACED Act," which was the name of the compromise bill.

“We’re delighted the Senate acted quickly to pass this legislation to shutdown illegal robocalls," they said. "We’re working hard to help the American people get real relief from these relentless and illegal calls. We look forward to the President signing this overwhelmingly bipartisan legislation into law very soon."

Specifically, the bill:

1. "Requires carriers to offer call-authentication technology to consumers and small businesses—in rural and urban America—at no additional charge;

2. "Requires opt-in or opt-out robocall blocking be offered at no additional charge to consumers;

3. "Gives the Federal Communications Commission (FCC) the ability to step up enforcement actions against unlawful robocalls with a longer statute of limitations and increased fines in certain cases;

4. "Pushes the Department of Justice to bring more criminal prosecutions against criminal robocallers;

5. "Requires the FCC to work to stop one-ring scams;

6. "Helps the FCC and responsible carriers traceback and cutoff suspect phone companies that are responsible for sending vast numbers of unlawful robocalls; and

7. "Protects patients, doctors, and hospitals from unlawful robocalls."

“We applaud Senate and House passage of the TRACED Act, and commend the bipartisan leadership on both sides of the Capitol for passing legislation that protects consumers from these frustrating calls," said NCTA-The Internet & Television Association. "Illegal robocalls have flooded phones for far too long, and TRACED takes meaningful steps to keep consumers safe from scammers. We urge the president to take swift action and sign this important legislation into law.”

The Senate Commerce Committee has approved, S. 2204, the Data Analytics Robocall Technology Act (DART Act).

That came at a markup in the committee Wednesday (Dec. 11). 

The bill would give the FCC 180 days to initiate a rulemaking to consider maintaining a list of numbers that are not eligible to be blocked (as part of default robocall blocking). 

Those numbers could include, said the bill, public safety answering point outgoing calls, emergency calls generated by a government entity, school-related notifications, and weather-closure related calls, other automated emergency calls. 

The FCC would also have to report back to Congress on the effectiveness of "various categories of call-blocking tools" and any legislative recommendations. 

The FCC under chairman Ajit Pai has clarified that carriers can block unwanted robocalls by default, urged them to do so by the end of the year, and will mandate it if carriers don't meet that deadline, says Pai.

The House has voted overwhelmingly to approve the bipartisan TRACED Act, a Senate bill (S. 151) that would crack down on unwanted robocalls. The vote was 417-3. 

The bill has already passed the Senate so it now heads to the President's desk. 

Caller ID and spam blocking app Truecaller released a report this week that showed spam robocalls were up fivefold in 2019, up from 7% of spam calls to 35%. 

Among other things, the bill would give the FCC civil fining authority of up to $20,000 per call for those who "intentionally flout" telemarketing restrictions. That could add up given that, by some estimates, spam calls make up over 40% of all calls. It would also extend the statute of limitations for taking action against illegal robocalls from one year to three.  

The bill would help punish bad actors--the FCC could seek financial penalties for misleading calls--and verify good calls, said its backers. It would also require carriers to provide default blocking at no extra cost. 

Related: Cable Ops Oppose Default Robocall-Blocking Mandate 

The compromise bill was introduced last month 

The Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act combines (and reconciles) the TRACED Act, which passed the Senate in May, and the Stopping Bad Robocalls Act, which incorporated five robocall bills, and passed the House in July. 

Specifically, according to Energy & Commerce, the bill:

• "Requires carriers to offer call-authentication technology to consumers and small businesses—in rural and urban America—at no additional charge;
• "Requires opt-in or opt-out robocall blocking be offered at no additional charge to consumers;
• "Gives the Federal Communications Commission (FCC) the ability to step up enforcement actions against unlawful robocalls with a longer statute of limitations and increased fines in certain cases;
• "Pushes the Department of Justice to bring more criminal prosecutions against criminal robocallers;
• "Requires the FCC to work to stop one-ring scams;
• "Helps the FCC and responsible carriers traceback and cutoff suspect phone companies that are responsible for sending vast numbers of unlawful robocalls; and
• "Protects patients, doctors and hospitals from unlawful robocalls."

Rep. Frank Pallone (D-N.J.), chairman of the House Energy & Commerce Committee that has principal oversight of the issue, said the bill provided meaningful solutions and was a great piece of legislation. (The Thune in the bill's name is John Thune [R-S.D]). 

"This is important legislation because unlawful robocalls are not only a nuisance," said Pallone, "they are also undermining our entire phone system and consumers' safety as a result. Too often Americans simply will not pick up their phones, out of fear that a robocall is on the other end of the line."

Rep. Greg Walden (R-Ore.), ranking member of the Energy & Commerce Committee, called it a good bill, though warned that scammers would try to do an end-around carrier efforts to stop them, so it was good that the bill included reports back to Congress on what else might be needed. 

“Here’s why the Pallone-Thune TRACED Act is a massive achievement and a landmark consumer protection bill: It supercharges the technology and traceback tools we know will cut down the illegal robocalls that are hijacking our phones and polluting our communications networks," said USTelecom president Jonathan Spalter. "The robocall battle won’t be won overnight, but today consumers notched a big victory against a determined enemy." 

“Robocalls have been flooding our phones for years, causing many Americans to even stop answering their phones," said NCTA-The Internet & Television Association. "We applaud House passage of the TRACED Act, and commend the bipartisan leadership of Senator Thune and Congressman Pallone for passing legislation that protects consumers from this daily aggravation. The TRACED Act is an important step to help alleviate Illegal robocalls and keep consumers safe from scammers.”

"I applaud the House for passing the Pallone-Thune TRACED Act," said Competitive Carriers Association president Steven K. Berry. "All carriers care about providing their customers with trusted voice communications and I commend Congress for taking steps to implement effective call authentication programs that address this overwhelming consumer complaint."

“ACA Connects is pleased that Congress has reached a bipartisan consensus on legislation to protect consumers from unwanted and illegal robocalls," said ACA Connects President Matt Polka. "ACA Connects members are eager to bring relief to their customers from the torrent of nuisance calls and scams, and to that end," Polka said. "ACA Connects is pleased that the bill takes into account the unique implementation challenges facing smaller providers. With the bill now headed to the Senate, we look forward to continuing to work with all stakeholders to bring an end to the robocalls scourge.”

House Energy & Commerce Committee leadership said Friday that they have come up with bipartisan, bicameral, legislation to combat unwanted robocalls.

The FCC is on the same page and a parallel track with various initiatives and fines for illegal robocalls, but it is one of the key constituent issues on the Hill so legislators want to put their own stake in that turf.

Signing on to the compromise bill are Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-N.J.), Senate Communications Subcommittee Chairman John Thune (R-S.D.), Energy & Commerce Ranking Member Greg Walden (R-Ore.), Sen. Ed Markey (D-Mass.), House Communications Subcommittee Chairman Mike Doyle (D-Pa.), and ranking member Bob Latta (R-Ohio).

Related: Cable Ops Oppose Default Robocall-Blocking Mandate

“Today, we are proud to announce that we have come to an agreement in principle on legislation, the Pallone-Thune TRACED Act, to combat the robocall epidemic that we believe can be signed into law by the President,” they said in a joint statement. “It’s time to put Americans back in charge of their phones. Our agreement will require telephone carriers to verify calls and allow robocalls to be blocked in a consistent and transparent way, all at no extra charge to consumers. The agreement also gives the FCC and law enforcement the ability to quickly go after scammers. We look forward to finalizing the bill text in the coming days.”

The Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act will combine (and reconcile) the TRACED Act, which passed the Senate in May, and the Stopping Bad Robocalls Act, which passed the House in July.

The FCC under chairman Ajit Pai has made cracking down on unwanted calls, that number in the many billions annually, one of his signature issues. That includes clarifying that carriers can block robocalls by default and incentivizing them to add the feature at no extra charge.  

The FCC is under pressure from Congress to help consumers weed out unwanted robocalls--for one thing, legislators keep pointing out that they get such calls during hearings about how to stop them.

“Help is on the way! Thank you to these Congressional leaders for coming together to provide critical new tools to fight back against the robocall criminals scamming consumers and polluting our networks," said USTelecom President Jonathan Spalter. "This is a powerful shot in the arm to our technology driven traceback and verification work and will go a long way in helping take back our phones.”

The House Energy & Commerce Committee Communications Subcommittee has approved an omnibus robocall bill. 

The bill is actually now five bills, with four other bills combined with the base bill and approved by voice vote in a markup Tuesday (June 25).

The umbrella bill is H.R. 3375, the “Stopping Bad Robocalls Act, which was amended with the addition of four other bills. The base bill would require carriers to adopt call authentication, something the FCC has urged but did not mandate in a recent vote to clarify that carriers can block unwanted robocalls by default.

The four added bills were:

1. The Ending One-Ring Scams Act of 2019 (HR 3264), which "requires the Federal Communications Commission (FCC) to initiate a proceeding to protect consumers from one-ring-scams, including by working with foreign governments on these scams and by incentivizing carriers to stop calls made to perpetrate one-ring scams, among other things.
2. The Locking Up Robocallers Act of 2019 (H.R. 3325) that "requires the FCC to submit evidence of certain criminal robocall violations to the Department of Justice for criminal prosecution and requires the FCC to publish an annual report disclosing how frequently the FCC submitted such evidence."
3. The Tracing Back and Catching Unlawful Robocallers Act (H.R. 3434), that "requires the FCC to register a consortium of companies engaged in private-led efforts to trace back the origin of suspected unlawful robocalls and creates a certification process for when carriers have or have not participated in a private-led effort to traceback the origin of a suspected unlawful robocall. It also requires the FCC to publish a report on carriers participation in private-led efforts to traceback the origin of suspected unlawful robocalls, and allows the FCC to permit some carriers to not accept calls from carriers facilitating suspected unlawful robocalls among other things."
4. The Spam Calls Task Force Act of 2019 (H.R. 721), which "requires the Attorney General, in consultation with the FCC, to convene an interagency working group to study the enforcement of the Telephone Consumer Protection Act (TCPA). Among other things, the task force shall: (1) determine how federal law and budgetary constraints inhibit enforcement of the TCPA; (2) identify existing and additional policies and programs to increase coordination between federal departments and agencies and the states for enforcing and preventing violations of the TCPA; and (3) identify existing and potential international policies and programs to improve coordination between countries in enforcing the TCPA and similar laws."

The bills now go to full committee for vetting.

Democratic Commissioner Geoffrey Starks has written to the top voice carriers, including cable voice providers Comcast, Cox, and Charter, trying to pin them down on their plans to provide free, default, robocall blocking.

The FCC unanimously agreed last week to clarify that carriers can block unwanted calls before they get to subs, so long as they give them an option to opt out. But while FCC Chairman Ajit Pai said he expected that service to be provided free since it would actually save carriers money, the FCC did not mandate that it be free, as both Starks and fellow Democratic commissioner Jessica Rosenworcel had wanted. 

Related: Dems Want Assurances Consumers Won't Pay for Call Blocking

“Carriers made clear to the Commission: They want to offer call blocking services to consumers by default. My colleagues and I made clear to carriers: They should not charge consumers for these services. The Commission has acted. Now it is industry’s turn to put these new tools to work for consumers. I’m looking forward to learning the details of their plans to do so," said Starks.

Starks wants the following information:

1. "Indicate whether you will offer your customers default call blocking services on an informed opt-out basis and, if so, provide details of your plans to deploy these services, including a timeline for implementation.
2. "Describe how you intend to inform consumers about this service.
3. "Indicate whether you expect to act contrary to the Commission’s clear expectations and
nevertheless charge your customers for these services.
4. "If you do not currently plan to offer customers default call blocking services on an
informed opt-out basis, please explain why."

Letters also went to AT&T, Centurylink, Frontier, Google, Sprint, TDST-Mobile, US Cellular, Verizon and Vonage. Starks would like to hear back by July 10.