FCC's 'New' Robocall Plan Isn't Particularly New, Won't Seriously Reduce Robocalls

from the half-measures-and-good-intent dept

So for a long time the FCC has made "fighting robocalls" one of their top priorities. Though with Americans still receiving 132 million Robocalls every single day, you may have noticed that these efforts don't usually have the impact they claim. Headlines about "historic" or "record" FCC robocall fines usually overshadow the agency's pathetic failure to collect on those fines, or the fact that thanks to recent Supreme Court rulings, the agency is boxed in as to which kind of annoying calls and spam texts it can actually police.

Which brings us to last week, when the agency announced yet another major action, this time proposed rule updates that would make it harder on the "gateway" companies (which connected overseas callers to U.S. phone networks) and the smaller phone operators that are the origins of so much of the problem. While the FCC's plan made a lot of headlines, experts were quick to note that most of the improvements were still far from being implemented:

"The plan as-is consists of good ideas, but I don't think it's going to make a big difference in the next couple of years,” Brad Reaves, an Assistant Professor of Computer Science at NC State University told Motherboard.

The proposal is just a proposal for now, and “gateway providers” still aren’t covered by existing rules. Neither are smaller providers with less than 100,000 customers, who’ve been exempted from the rules until 2023. “These two types are the providers that most in the industry believe are serving the robocallers,” he said."

In short, the FCC's big plan for robocalls was really just a plan to consider doing something about robocalls, eventually. To be fair, the FCC is doing something relatively good: it's forcing wireless carriers of all sizes to implement SHAKEN/STIR call authentication tech, which helps combat robocall spoofing. It's also requiring companies that haven't implemented this caller verification tech to track their progress in an FCC Robocall Mitigation Database.

But there are two other reasons that the FCC's well-hyped "solution" to robocalls isn't much of one. For one, the agency is boxed in thanks to a recent Supreme Court Facebook ruling (Facebook, Inc. v. Duguid) that left it hamstrung when it comes to policing spam texts or live-person marketing and scam calls made with an autodialier:

"The rules were, until April 1st of this year, that our cellphones were protected not only from pre-recorded calls, but unwanted texts, and unwanted live calls made by an autodialer,” Saunders said, referring to the Telephone Consumer Protection Act (TCPA). But in April a Supreme Court ruling (Facebook, Inc. v. Duguid) effectively nullified the TCPA’s ban on autodialed calls and texts to cell phones without your consent. So while there are growing but sometimes inconsistent restrictions on pre-recorded robocalls, annoying spam texts and many live calls made with auto dialers remain perfectly legal."

The other major problem is that the existing U.S. rules about robocallers are heavily influenced by the lobbying of numerous industries and telemarketing interests. That has historically resulted in rules and enforcement that fixate exclusively on "scam" callers, while providing big loopholes for "legitimate" telemarketers, spammers, and debt collecting robocalls who can be every bit as unwanted, and who often use the same exact tactics:

"Saunders’ Congressional testimony has highlighted how scammers often comprise the minority of overall robocalls. Many are debt collectors working for banks or telecom providers, who relentlessly harass consumers they know can’t pay their bills. Efforts to rein in those types of calls have often taken a backseat thanks to lobbying pressure."

So yes, some of what the FCC is doing is helping. Authentication tech helped trigger an 8% reduction in overall robocalls in August, though with this kind of cat and mouse game it's not clear if that reduction will last. But the bigger problem remains that the FCC's authority has been boxed in by the Supreme Court, and lobbying has resulted in existing rules often being a little too friendly to equally obnoxious, "legitimate" telemarketers. The reality is that Americans receive 5.5 million robocalls every hour. That's an absolute tidal wave that's not slowing down without significant changes on multiple fronts.

Filed Under: fcc, robocalls, spam, telemarketing

FCC Pretends To Hold Carrier Feet To The Fire On Robocalls

from the annoy-me-during-dinner dept

Despite numerous government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers and scammers continue to be the subject the FCC receives the most complaints about, and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers are routinely hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. In September, group data showed that roughly 4.4 billion robocalls were placed to consumers at a rate of 147 million per day. The trend is not subtle:

Usually, you'll see the FCC crack down hard on small robocall scammers if the case is a slam dunk. But you'll never really see the agency hold giant carriers accountable for their longstanding apathy, blame shifting, and tap dancing that they have engaged in in terms of quickly adopting modern technical solutions to the problem.

This week, FCC boss Ajit Pai took a break from neutering popular consumer protections to send a letter to 13 companies including AT&T, Sprint, T-Mobile, and Google, demanding they all do more to help protect consumers from robocalls. In a separate statement (pdf), Pai declared that if things don't start improving by next year, he'll maybe actually do something about it:

"Combatting (sic) illegal robocalls is our top consumer priority at the FCC. That’s why we need call authentication to become a reality—it’s the best way to ensure that consumers can answer their phones with confidence. By this time next year, I expect that consumers will begin to see this on their phones...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."

Pai's letter resulted in numerous outlets stating that carriers must finally move quickly on the scourge of robocalls, "or else." Some outlets took the FCC's letter to mean that carriers absolutely had to solve robocalls by next year or something ambiguously serious would happen to them.

But that's not likely to be the case. Giant carriers have, if you haven't noticed, found the Trump FCC to be a mindless rubber stamp for every single one of their wishes, no matter how preposterous. Surely they're terrified that Pai may actually send them some additional snarky letters. After all, AT&T spent years trying to blame the FCC for its own failure to do more on this front, with zero real repercussions for the behavior (aside from being appointed lead on a "strike force" a few years back that pretty clearly hasn't addressed the problem).

Like past FCCs under opposing parties, the agency loves to do this thing where it "demands" carriers do something they already planned to do. In this case, it's the adoption of a new SHAKEN/STIR call authentication technology to hinder the use of spoofed numbers, which are all but impossible to police. Outside of a few holdouts (CenturyLink, Frontier), most of the carriers Pai sent letters to this week are already engaged in trials of this new technology, and have publicly stated they'll be launching the tech in early 2019.

In short, Pai is "demanding" that carriers adopt technology he knows they already planned to adopt. But his failure to impose a hard deadline (unlike, say, Canada), and his legacy so far of being aggressively cozy with the companies he's supposed to hold accountable, means that it's pretty unlikely that companies that fail to keep pace on SHAKEN/STIR deployments will actually see much in the way of punishment. After all, wasn't letting giant, lumbering telecom monopolies pretty much do whatever they want supposed to be a mystical panacea for the ills of the telecom sector?

Filed Under: ajit pai, fcc, robocalls, telemarketing
Companies: at&t, google, sprint, t-mobile

The FCC Has Started Publicly Shaming Robocallers Weekly

from the playing-the-shame-game dept

While there's been no limit of hand wringing from the grumpy grandpa corners of the Internet about the mean old "over-reaching" FCC, the agency has actually been making some good decisions lately. Reclassifying ISPs under Title II and passing tough net neutrality rules (which, contrary to chicken littles has been a good thing so far), stopping ISPs from buying state protectionist broadband law, cracking down on cramming, thwarting convention centers from blocking personal Wi-Fi so you'll use their pricey services; there's a lot of pro-consumer, pro innovation, pro-competition issues the FCC has woken up to after a fifteen year slumber.

And back in May the FCC announced (pdf) that it was taking aim at the number one issue consumers complain to the FCC about: robocalling. The FCC said it was considering new rules that would not only make it easier for consumers to opt out of marketing pitches via phone or SMS, but make it clear that voice and wireless carriers can offer new robocall-blocking services without violating call-completion rules. While ISPs like Sonic applauded the FCC's plan, the agency was of course sued by the U.S. Chamber of Commerce, who claimed the FCC "overstepped its authority by creating new restrictions on legitimate, good faith communications from businesses to their customers."

Undaunted by yet another lawsuit in its growing pile, the FCC has moved forward and announced it's also going to start listing robocaller phone numbers every week to make it easier for consumers and services to blacklist them. That monthly data is now compiled here for your perusal each week, published as a downloadable CSV file. The FCC says its goal is to help streamline the war on dinner-interrupting robocallers:

"This data will help improve do-not-disturb technologies so they can provide the best service for consumers,” said Alison Kutler, chief of the FCC’s Consumer and Governmental Affairs Bureau, which manages consumer complaints. “As we encourage providers to offer these services, and as the Commission recently made clear that there are no legal barriers to doing so, we continue to look for ways to help facilitate important consumer tools."

Call blocking services like NomoRobo have applauded the move, noting that previously they needed to file time-consuming FOIA requests to obtain this data:

"For the past 2 years I have been advocating for all of the government organizations to report this data. And the push-back that we always get is well there’s personally identifiable information, what about the consumer, how do we protect the consumer, and what I’ve been saying is, listen we don’t need to know any consumer information. All that we need to know is what is the robocallers phone number. If we get that, that really helps us."

Of course, this is just a step in the right direction, and not a killing blow. Most robocallers make heavy use of number spoofing technology, meaning that fighting robocalling will always be a massive game of Whac-a-Mole no matter what. The FCC's going to need to remain vigilant in keeping the list up to date and accurate, since the organic response by robocallers will be to rotate faster than ever through spoofed numbers. Still, while no single solution is going to kill robocalling, the FCC's overall actions of late should lend a hand. Meanwhile, consumers with a little extra free time on their hands can help by making robocalling less profitable and more annoying by checking out robocaller time wasters like Lenny.

Filed Under: fcc, robocollers, shaming, telemarketing

Time Warner Cable Forced To Pay $229,500 For Robocalling The Wrong Person...153 Times

from the dysfunction-junction dept

Time Warner Cable continues to be incredibly good at being incredibly bad at what it does. The cable operator already enjoys arguably the worst customer satisfaction ratings of any company in any U.S. industry, below even Comcast. Its horrible customer service is legendary, and things have actually gotten worse as the company has sat on its hands waiting to be sold off to a rotating crop of equally dysfunctional suitors. When you're this bad at what you do, you have to be truly creative in finding new and imaginative ways to annoy your customer base.

Time Warner Cable's latest incredible display of ineptitude? The cable giant has been sued for robocalling a woman 153 times regarding an overdue balance. The problem? Time Warner Cable was calling the wrong woman, who ultimately had to file suit against the cable operator to get them to stop annoying her:

"King, of Irving, Texas, accused Time Warner Cable of harassing her by leaving messages for Luiz Perez, who once held her cellphone number, even after she made clear who she was in a seven-minute discussion with a company representative. The calls were made through an "interactive voice response" system meant for customers who were late paying bills."

Time Warner Cable is being ordered by the courts to pay Araceli King $229,500 (or $1,500 per call) for violating the Telephone Consumer Protection Act, not a bad payout for the woman having to delete 153 unlistened-to voicemails. The truly amazing part is that Time Warner Cable still managed to robocall the woman an additional 74 times...after the suit was filed:

"He also said 74 of the calls had been placed after King sued in March 2014, and that it was "incredible" to believe Time Warner Cable when it said it still did not know she objected. "Defendant harassed plaintiff with robo-calls until she had to resort to a lawsuit to make the calls stop, and even then TWC could not be bothered to update the information in its IVR system," Hellerstein wrote."

That's pretty impressive even for Time Warner Cable's low standards of operational efficiency. Some bad news for Time Warner Cable: the FCC actually just got done making Robocall restrictions a little tougher for violators. Surely Time Warner Cable CEO Rob Marcus, set to potentially make $97 million as an exit package via the upcoming Charter merger, is working tirelessly at making his company much less professionally annoying.

Filed Under: do not call, robocalls, telemarketing, telephone consumer protection act
Companies: time warner cable

Investment Bank Fails In Attempt To Quash Discussion Of Its Telemarketing Efforts

from the calling-streisand dept

As courts across the country have endorsed the rule that, under section 230 of the Telecommunications Act of 1996, 47 U.S.C. § 230, the hosts of blogs and message boards are immune from suit for content that others post to their sites, companies that want an easy way to suppress such criticisms have struggled to find ways to bring suit anyway.  Especially among commercial litigators with limited exposure to intellectual property law, the trendy way to evade section 230 is to allege that criticism using the name of a company “tarnishes” its trademark, or that criticism using the name of an individual violates the right of publicity.  Another popular way to evade section 230 is to charge the web host with being an “information content provider.”

In its recent attempt to enjoin Julia Forte, the operator of 800Notes.com and whocallsme.com, from carrying posts that criticized its telemarketing techniques as well as it s business model, Houlihan Smith & Company tried both tacks — it claimed tarnishment and right of publicity violations, and it pointed to Google search results that included negative statements about it in the search snippets for the two web sites and alleged that Forte must be putting its name, and derogatory words such as “fraud” and “scam,” into her title tags and description meta tags.  Houlihan actually got a temporary restraining order (TRO) at first, by coming into court without any notice and bamboozling the state court judge with a long sworn complaint and supporting affidavits.  But when Forte found a lawyer (me) and removed to federal court, the judge quickly saw through Houlihan’s bluster and refused to give an injunction.  But how it lost is of particular interest.    (I discuss the oral opinion and the plaintiffs’ arguments in greater detail on the Consumer Law and Policy Blog, with links to the relevant documents from both sides)

In part, Houlihan lost because the federal judge, Virginia Kendall, could actually read the HTML code and could see that the complaint was based on lies.  (Not one of those judges who “don’t know technology” as Mike recently discussed).   As she remarked at the outset of the preliminary injunction hearing, one of her specialties as federal prosecutor was child pornography, and because porn purveyors are champions at manipulating code, she had to learn about it.  So, although Forte had supplied an affidavit explaining how to read the HTML code, Judge Kendall just pulled up the code herself and read it, told plaintiffs’ counsel that she couldn’t see any trademarks or defamatory words in the code that was before her, and asked if they had any other proof.  They didn’t.

On the trademark claims, Judge Kendall also rejected the motion for a preliminary injunction, but interestingly she did it without mentioning the First Amendment or the doctrine of prior restraint.  She first noted that under trademark law, just as a trademark may be used by a reseller to truthfully identify the name of the product that is being sold, so a critic may use the name of the trademark holder to truthfully identify the name of the company being criticized.  And as defined by the federal trademark “dilution” statute, dilution law only forbids uses of trademarks that injure the reputation of the trademark; it does not apply to uses that injure the reputation of the business.  Otherwise, any plaintiff could evade section 230 immunity just by changing the label of a defamation claim and calling it a trademark claim.

Representing Forte, we were sorry not to have won on First Amendment and prior restraint grounds, but Judge Kendall’s ruling may actually have a broader impact, protecting other hosts of interactive discussion sites, for her discussion of trademark law.  At this point, Judge Kendall has only given an opinion from the bench, explaining why she was not granting a preliminary injunction (we have ordered the transcript).  But she indicated that she would be issuing a written opinion.  It could be worth waiting for.

Filed Under: free speech, section 230, telemarketing
Companies: 800notes.com, houlihan smith

Court Says Anti-Telemarketing Law Covers Unsolicited Text Messaging

from the this-is-a-good-thing dept

Via Michael Scott we learn that the 9th Circuit Court of Appeals has found that the Telephone Consumer Protection Act (TCPA) also applies to unsolicited text messages. The TCPA covers certain kinds of commercial marketing over telephones, and has a rule against the use of "automatic telephone dialing systems," but it wasn't clear if text messaging was an automatic telephone dialing system. The court has now said yes.

Separately, the case looked at whether or not agreeing to a basic terms of service also represented "express consent" which is needed under the TCPA. In this case, the woman had purchased a ringtone, but did not believe she had consented to commercial text messages. In buying the ringtone, the woman agreed to an extremely broadly worded terms of service that was probably purposely designed by lawyers to cover a wide swath of potential other things -- such as allowing the company to let others market things to the user. The question was whether or not other companies, who purchased the phone number from the ringtone company, could then market to the woman. The court here finds that dubious as well, noting that "express consent" is "[c]onsent that is clearly and unmistakably stated," which the court feels was not the case here, since the consent was only for the ringtone company to market messages, not anyone else (even though the marketing company -- in this case Simon & Schuster -- noted that the text message was "powered by" the ringtone company): "Thus, Satterfield's consent to receive promotional material by Nextones and its affilliates and brands cannot be read as consenting to the receipt of Simon & Schuster's promotional material."

This ruling isn't the final say on the matter -- as the appeals court was just reversing a lower court's summary judgment, and telling the lower court that it needs to actually go further in paying attention to the case. However, the points raised above are certainly important ones that I imagine will start showing up in other cases as well. Finally, it's also worth pointing out that the defendant in this case is Simon & Schuster, rather than Nextones. This does raise some interesting questions. Simon & Schuster believed that it was purchasing the right to contact these phone numbers legitimately via a marketing company partnered with Nextones. It had no idea that the "agreement" may be faulty, but it may now be liable for breaking the law. If that moves forward, you would have to think that Simon & Schuster has an argument to sue either Nextones or the marketing company it worked with for misrepresenting the "explicit consent" on those numbers.

Filed Under: spam, tcpa, telemarketing, text messages

Reddit Community Discovers Phone Numbers To Reach Car Warranty Telemarketers...

from the poetic-justice? dept

Pretty much everyone is getting those telemarketing scam car warranty calls these days. They're the ones that start out "this is the second warning that the factory warranty on your car is about to expire...." Of course, it's not the second warning (in some cases it's the 100th) and it doesn't matter if your car warranty is about to expire or even if you own a car. They just call everyone. Last summer, the FTC announced that (partly in response to those calls), all prerecorded telemarketing calls were banned. But, considering these guys are scammers, that wasn't going to stop them. It looks like the folks over at Reddit got fed up and social engineered the phone numbers of the company out of a rep, and then the community just started calling repeatedly, overwhelming the company's phone lines. Of course, while it certainly has that poetic justice feel to it, it won't stop them. They'll change their phone number and get right back to it. What's not clear is why the Reddit folks could track down who was responsible while the FTC has been unable to do so...

Filed Under: car warranty, mob justice, scams, telemarketing

Canadians Getting More Telemarketing Calls After Putting Names On Do Not Call List

from the whoops dept

When the US first instituted its Do Not Call list, there was some fear that unscrupulous telemarketers would actually use the list as a "good list" of people to call. In fact, many people were nervous to use the list at the beginning for just that reason. However, for the most part, there haven't been that many abuses of the list (there have certainly been some, but it's not nearly as widespread as many expected). Unfortunately, it appears the same is not true in Canada. The Canadian list works by allowing anyone to buy it -- supposedly so they can cleanse their own lists of any DNC numbers. But, it can also be used by unscrupulous scammers -- such as those offshore -- who apparently are buying the DNC list in order to have a "verified" list of people to call with scams. It's reached the point that many claim they're getting more telemarketing calls (for much more scammy reasons) than before.

Filed Under: canada, do not call, scammers, telemarketing

FTC Outlaws Pre-recorded Sales Calls

from the but-will-they-enforce-it? dept

Over the past few months, at least twice a week, I've received a phone call on my mobile phone with a stern (almost angry) recorded voice saying "this is your second warning that the factory warranty on your vehicle is about to expire." Of course, the factory warranty on my car isn't about to expire, and considering that I've received about 30 of these calls, it's difficult to believe it's the "second" warning. Apparently, I'm not the only one to receive these calls. An informal poll of friends found that more than 50% of them were all receiving the same bogus calls. While those already broke various telemarketing rules, it appears that the FTC is looking to further crack down, announcing that all pre-recorded telemarketing sales calls are banned without a signed, written agreement allowing the calls. Informational calls (non-sales calls) such as informing you that a flight has been delayed are allowed -- but sales calls are not.

Of course, the big question is whether or not the FTC will actually enforce the new rules and go after violators. Part of the rule change does give the FTC more leeway in going after those responsible for the messages, but until the FTC really does start shutting some of these operations down, you can bet they'll continue making the automated pre-recorded calls. I'm sure I'll be hearing about the imminent expiration of the factory warranty on my vehicle for some time.

Filed Under: ftc, pre-recorded sales calls, robocalls, telemarketing