In early November, the FCC released two Public Notices aimed at reducing the number of unwanted phone calls. First, FCC Chairman Pai requested that the phone industry adopt a robust call authentication system to combat illegal caller ID spoofing. On November 5, 2018, Chairman Pai sent letters to 11 voice providers asking those that had not yet established concrete plans to implement the Signature-based Handling of Asserted Information Using toKENs (SHAKEN) and the Secure Telephone Identity Revised (STIR) standards to implement such standards without delay. Chairman Pai’s outreach also underscored the importance of private actors to combat illegal spoofing and unwanted robocalls. According to the FCC, such an enhanced call authentication framework would reduce the ability of callers to illegally spoof caller IDs. In the press release, Chairman Pai warned, “Carriers need to continue working together to make this happen and I am calling on those falling behind to catch up. … If it does not appear that this system is on track to get up and running next year, then we will take action to make sure that it does.”
Second, on November 6, 2018, the FCC sent letters to 8 voice providers who are not participating in an industry-led “traceback” effort, requesting that they assist industry efforts to trace scam robocalls that originate or pass through their networks. The FCC reported that it receives more consumer complaints about unwanted calls – including scam calls that use spoofing to trick consumers – than any other subject. By increasing their participation in traceback efforts, voice providers would be assisting in guarding against illegal traffic and in helping the FCC identify the source of illegal calls. Recipients of the letters also were asked to report back to the FCC on the safeguards they take to identify and to stem the flow of illegal calls.
Taken together, these actions signal a renewed effort by the Commission to reduce the volume of unwanted phone calls. It also may be the first step in the FCC’s efforts to address the many pending proceedings before the agency at this time. There is increased speculation that action on the remand in ACA International v. FCC will be coming in the next several months.
Ninth Circuit Declines to Rehear Marks
On October 30, 2018, the Ninth Circuit denied the defendant’s Petition for Rehearing En Banc in Marks v. Crunch San Diego, LLC, No. 14-56834. As we previously reported in October's TCPA Tracker, on September 20, a three-member panel of the Ninth Circuit ruled that an ATDS includes devices with the capacity to automatically dial stored telephone numbers. On October 4, the defendant filed the Petition, arguing that the panel’s decision is inconsistent with the statutory text, legislative history, and Ninth Circuit precedent. Additionally, the defendant contended that the decision contradicted rulings from the Third and D.C. Circuits, creating a circuit split that will cause more uncertainty and litigation. The Ninth Circuit denied the Petition in a one-page order.