BACKGROUND FCC’s 17-97 Second Report and Order (adopted 29-Sep 2020) instantiated the Robocall Mitigation Database.…
I’m usually underwhelmed with what I see in congressional hearings targeting illegal robocalls.
But a May 7 session of the Subcommittee on Financial Services and General Government, chaired by Louisiana Senator John Kennedy, came to my attention and I was impressed.
This excerpt from the hearing captures the back-and-forth between the Senator, FTC Chairman Simons and FCC Chairman Pai. I think the Senator understands the situation – or the solution – perhaps better than FCC Chairman Pai does.
Senator Kennedy wants to know if the FTC and the FCC can identify the “carriers” that are “facilitating” this massive flood of illegal robocalls onto the USA telephone network. FTC Chairman Simons responds “yes.” Kennedy then wants to know why we aren’t “punishing them the rest of their natural lives.”
Simons explains that the FTC doesn’t have jurisdiction over “common carriers” – and Pai volunteers that the FCC does. One point not raised in the hearing: the FCC’s historical reluctance to exert their full authority over these facilitating providers as “common carriers.”
This isn’t the first time there’s been confusion surrounding “common carrier.” A 9th Circuit Appellate Court decision in 2018 pointed out: Since passage of the FTC Act over a century ago, Congress has never defined “common carrier” or explained the meaning of the phrase “subject to the Acts to regulate commerce.” Nor has Congress provided absolute clarity in the Communications Act, and the FCC has not further defined the phrase in its regulations. The Communications Act purports to define the term, but does so circularly.
That same decision goes on to reference 47 U.S.C. § 153(51): A “telecommunications carrier” is “treated as a common carrier…only to the extent that it is engaged in providing telecommunications services.” It is clear that the providers aiding and abetting the robocallers are providing telecommunications services. Thus, to that extent, they are common carriers, and the FCC should use its full authority to address this problem.
Senator Kennedy asked Chairman Pai to get him the list of problematic carriers within a week. I am anxious to find out what response Pai has sent. It’s been six weeks and yet I did not see anything posted on Pai’s Letters to Congress page.
What still flummoxes me is why Pai is so fixated on having providers mark calls as authenticated at the originating end just so those not marked can be blocked at the terminating end. Instead, prevail upon providers to keep the problematic calls off the network to begin with. Senator Kennedy gets it.