[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16367-16375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6877]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 64
[WC Docket No. 11-39; FCC 11-41]
Implementation of the Truth in Caller ID Act of 2009
AGENCY: Federal Communications Commission.
ACTION: Proposed rules.
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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Commission
proposes rules to implement the Truth in Caller ID Act of 2009. The
proposed rules prohibit caller ID spoofing done with the intent to
defraud, cause harm, or wrongfully obtain anything of value. The
Commission also seeks comments that will assist the Commission in
preparing a statutorily required report to Congress on whether
additional legislation is necessary to prohibit the provision of
inaccurate caller identification information in technologies that are
successor or replacement technologies to telecommunications services or
IP-enabled voice services.
DATES: Comments are due on or before April 18, 2011 and reply comments
are due on or before May 3, 2011.
ADDRESSES: You may submit comments, identified by WC Docket No. 11-39,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
[[Page 16368]]
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the supplementary
information section of this document.
FOR FURTHER INFORMATION CONTACT: Lisa Hone, Wireline Competition
Bureau, Competition Policy Division, 202-418-1580.
SUPPLEMENTARY INFORMATION: Pursuant to Sec. Sec. 1.415 and 1.419 of
the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may
file comments on or before April 18, 2011 and reply comments on or
before May 3, 2011. Comments may be filed using: (1) The Commission's
Electronic Comment Filing System (ECFS), (2) the Federal Government's
eRulemaking Portal, or (3) by filing paper copies. See Electronic
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/or the Federal eRulemaking Portal: http://www.regulations.gov.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Filings and comments are also available for public inspection and
copying during regular business hours at the FCC Reference Information
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC
20554. They may also be purchased from the Commission's duplicating
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300,
fax: (202) 488-5563, or via e-mail http://www.bcpiweb.com.
Initial Paperwork Reduction Act of 1995 Analysis
This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
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).
Below is a synopsis of the Commission's Notice of Proposed
Rulemaking in WC Docket No. 11-39, adopted March 9, 2011, and released
March 9, 2011.
Synopsis of Further Notice of Proposed Rulemaking
1. In this NPRM, the Commission seeks comment on proposed rules to
implement the Truth in Caller ID Act of 2009 (Truth in Caller ID Act,
or Act), signed into law on December 22, 2010. Caller ID services
identify the telephone numbers and sometimes the names associated with
incoming calls. The Truth in Caller ID Act prohibits anyone in the
United States from causing any caller identification service to
knowingly transmit misleading or inaccurate caller ID information with
the intent to defraud, cause harm, or wrongfully obtain anything of
value. The Truth in Caller ID Act requires the Commission to issue
implementing regulations within six months of the law's enactment. It
also requires the Commission, by the same date, to submit a report to
Congress on ``whether additional legislation is necessary to prohibit
the provision of inaccurate caller identification information in
technologies that are successor or replacement technologies to
telecommunications services or IP-enabled voice services.''
2. In order to implement the Truth in Caller ID Act, the Commission
proposes to (i) add a section to the Commission's current rules
governing Calling Party Number (CPN) services, and (ii) enhance the
Commission's forfeiture rules. The proposed additions to the
Commission's CPN rules are modeled on the Act's prohibition against
engaging in caller ID spoofing with fraudulent or harmful intent, and
include the statutory exemptions to the prohibition. The proposed rules
also include new definitions. The proposed amendments to the
Commission's forfeiture rules implement the forfeiture penalties and
forfeiture process provided for in the Act.
A. Proposed Amendments to the Commission's Rules Relating to Calling
Party Numbers
3. The Commission proposes rules that would prohibit any person or
entity in the United States, with the intent to defraud, cause harm, or
wrongfully obtain anything of value, from knowingly causing, directly
or indirectly, any caller identification service to transmit or display
misleading or inaccurate caller identification information. The Act's
prohibition is directed at spoofing ``in connection with any
telecommunications service or IP-enabled voice service.'' The proposed
rules define ``caller identification service'' and ``caller
identification information'' to encompass both types of calls;
therefore, the proposed rules would apply to calls made using both
types of services. The Commission seeks comment on this approach, and
whether the Commission needs to take any other steps to ensure that
calls made using telecommunications services and interconnected VoIP
services are covered by the proposed rules.
4. The Commission also seeks comment on the use of the word
``knowingly'' in the statute and our proposed rules. The statutory
language prohibits anyone from ``causing any caller identification
service to knowingly transmit misleading or inaccurate caller
identification information with the intent to defraud, cause harm or
wrongfully obtain anything of value'' and could be read to require
knowledge by either the caller identification service or the actor
employing the caller identification service. However, in many
instances, the caller identification service has no way of knowing
whether or not the
[[Page 16369]]
caller identification information it receives has been manipulated. The
proposed rules thus focus on whether the caller has knowingly
manipulated the caller identification information that is seen by the
call recipient in order to defraud, cause harm, or wrongfully obtain
anything of value. Our proposed rules provide that the person or entity
prohibited from ``knowingly'' causing transmission or display of
inaccurate or misleading caller identification is the same person or
entity that must be acting with intent to defraud, cause harm, or
wrongfully obtain anything of value. The proposed rules address both
transmitting and displaying inaccurate caller identification
information to make clear that, even if a carrier or interconnected
VoIP provider transmits accurate caller identification information, it
would be a violation for a person or entity to cause a device that
displays caller identification information to display inaccurate or
misleading information with the intent to defraud, cause harm, or
wrongfully obtain anything of value. The Commission seeks comment on
whether these proposed rules accurately reflect Congress' intent. Are
there any changes to the proposed rules that would improve how this
prohibition is expressed?
5. The Commission also seeks comment on whether the proposed
prohibition on causing any caller identification service to transmit or
display ``misleading or inaccurate'' caller identification information
with the ``intent to defraud, cause harm, or wrongfully obtain anything
of value'' provides sufficiently clear guidance about what actions are
prohibited. Do the proposed rules provide the public with
``ascertainable certainty'' about what would constitute a violation of
the Act? Are the terms used in the proposed rules sufficiently well
understood concepts that the public reasonably should know which
actions are prohibited? For example, must the legal elements of common
law ``fraud'' be met for a finding of intent to ``defraud'' under the
Commission's proposed rules? Are there other statutes that provide
relevant and well-defined standards for what it means to ``defraud''
someone? To the extent that greater specification is desirable, how
should the proposed rules be changed to provide the desired clarity
while remaining faithful to Congress' intent? The Commission also seeks
comment on the different methods that a person or entity can employ to
cause a caller identification service to transmit misleading or
inaccurate information, and whether our proposed rules adequately
encompass all such methods.
6. Definitions. The Act specifies that ``IP-Enabled Voice Service''
has the same meaning as Sec. 9.3 of the Commission's regulations (47
CFR 9.3). The Commission's regulations define ``Interconnected VoIP
service'' rather than ``IP-Enabled Voice Services.'' Although the Act's
use of a term other than the one set forth in the Commission's
regulations might allow other interpretations, the Act's specific
reference to the Commission's rule defining interconnected VoIP service
indicates that Congress intended the scope of the caller ID spoofing
prohibition to track the Commission's definition of interconnected VoIP
service. Consequently, the proposed rules use the term ``Interconnected
VoIP service'' and specify that it has the same meaning given the term
``Interconnected VoIP service'' in 47 CFR 9.3 as it currently exists or
may hereafter be amended. The Commission seeks comment on this
proposal. The Department of Justice (DOJ) has suggested that the
Commission could instead model a definition of IP-enabled voice service
on the definition of that term in 18 U.S.C. 1039(h)(4). DOJ's proposed
definition is broader than the Commission's and would not require the
user to have a broadband connection, and would not require that users
be able to originate traffic to and terminate traffic from the public
switched telephone network. The Commission seeks comment on DOJ's
suggestion, and on other suggestions for defining ``IP-Enabled Voice
Service,'' including the advantages and disadvantages of adopting a
particular definition. Commenters should also explain how such an
interpretation is in accord with the reference to 47 CFR 9.3 in the
statute.
7. The Commission proposes defining ``Caller identification
information'' to mean ``information provided by a caller identification
service regarding the telephone number of, or other information
regarding the origination of, a call made using a telecommunications
service or interconnected VoIP service,'' and defining ``Caller
identification service'' to mean ``any service or device designed to
provide the user of the service or device with the telephone number of,
or other information regarding the origination of, a call made using a
telecommunications service or interconnected VoIP service. Such term
includes automatic number identification services.'' The Commission's
proposed rules adopt the definitions in the Act, except that, as
described above, the proposed definitions use the term ``interconnected
VoIP services'' instead of ``IP-enabled voice services.''
8. The Commission seeks comment on whether the definitions of
``Caller identification information'' and ``Caller identification
service'' in the proposed rules are sufficiently clear. Are there
services other than traditional caller ID services (i.e., services that
terminating carriers and Interconnected VoIP provide to their
subscribers) that are, or should be, included within the definition of
``Caller identification service''? For example, spoofing caller
identification information transmitted to emergency services providers
is a particularly dangerous practice, and one which Congress was
particularly concerned about when adopting the Truth in Caller ID Act.
Should the delivery of caller identification information to E911 public
safety answering points, which use automatic number identification
(ANI) to look up the caller's name and location information on
emergency calls, be considered a type of ``Caller identification
service'' for purposes of our rules? What are the benefits and
drawbacks to including information about calling parties provided to
E911 public safety answering points as ``Caller identification
information?''
9. The term ``Caller identification service'' in the Act explicitly
includes ``automatic number identification services.'' The Commission's
current rules relating to the delivery of CPN services define ANI as
the ``delivery of the calling party's billing number by a local
exchange carrier to any interconnecting carrier for billing or routing
purposes, and to the subsequent delivery of such number to end users.
We seek comment on whether we should use a different definition of ANI
for purposes of the Truth in Caller ID Act. In particular should we
include in the proposed rules a definition of ANI that encompasses
charge party numbers delivered by interconnected VoIP providers? What
are the consequences of referencing automatic number identification
services in the definition of ``Caller identification service,'' but
not in the definition of Caller identification information?
10. The Act and proposed rules define ``Caller identification
Information'' and ``Caller identification service'' to include ``the
telephone number of, or other information regarding the origination of,
a call.'' The Commission proposes to define ``information regarding the
origination'' to mean any: (i) Telephone number; (ii) portion of a
telephone number, such as an area code; (iii) name; (iv) location
information; or (v)
[[Page 16370]]
other information regarding the source or apparent source of a
telephone call. The Commission seeks comment on this proposed
definition. Are there other things that should be included in the
definition? For example, should the definition explicitly reference
information transmitted in the SS7 Jurisdiction Information Parameter
(JIP) code that provides information about the location of a caller who
has ported his number or is calling over a mobile service? Does the
proposed definition provide sufficient clarity about what is included?
11. The Act is directed at ``any person,'' but does not define the
term ``person.'' In order to make clear that the rules are not limited
to natural persons and to be consistent with the Commission's current
rules concerning the delivery of CPN, the proposed amendments to the
CPN rules use the phrase any ``person or entity.'' By contrast, the
proposed amendments to the Commission's forfeiture rules use the term
``person'' in order to be consistent with the use of the term
``person'' in the forfeiture rules. In both cases, the Commission
intends for the entities covered to be those that are considered to be
a ``person'' under the definition of ``person'' in the Communications
Act. The Commission seeks comment on this approach. Should the
Commission, consistent with its stated intent, incorporate the
Communications Act definition of person in both rules rather than use
different terminology in each rule? The Commission also seeks comment
on whether it should exclude any class of persons or entities from the
definition of ``person'' and if so, whom it should exclude. Should the
same rules apply to individuals and businesses? The Commission also
seeks comment on whether there are other terms that should be defined
in the Commission's implementing regulations.
12. Third-Party Spoofing Services. There are numerous third-party
providers of caller ID spoofing services, which can make it easy for
callers to engage in caller ID spoofing. Third-party spoofing services
can facilitate lawful and legitimate instances of caller ID
manipulation as well as unlawful and illegitimate caller ID
manipulation. DOJ has urged the Commission to consider adopting rules
requiring ``public providers of caller ID spoofing services to make a
good-faith effort to verify that a user has the authority to use the
substituted number, such as by placing a one-time verification call to
that number.'' The Commission invites comment on whether the Commission
can, and should, adopt rules imposing obligations on providers of
caller ID spoofing services when they are not themselves acting with
intent to defraud, cause harm, or wrongfully obtain anything of value.
For example, are there reporting or record-keeping requirements that we
can and should impose on third-party spoofing services that would
assist the Commission in preventing callers from knowingly spoofing
caller identification information with intent to defraud, cause harm,
or wrongfully obtain anything of value or that would assist the
Commission in identifying callers who engage in such practices? The
Commission also seeks comment on DOJ's specific proposal relating to
providers of caller ID spoofing services, and more broadly on what
rules we can adopt to discourage or prevent caller ID spoofing services
from enabling or facilitating unlawful conduct. If a third-party
provider knows or has reason to believe that a caller is seeking to use
the caller ID spoofing service for impermissible purposes, should the
third party be held liable, or have a duty to report its concerns to
the Commission? What jurisdiction does the Commission have to impose
obligations on third-party providers? How would DOJ's proposal, or
other possible approaches to address third-party services that may
facilitate unlawful activity, affect the callers that use third-party
services for permissible purposes?
13. Exemptions. The Act directs the Commission to exempt from its
regulations: (i) any authorized activity of a law enforcement agency;
and (ii) court orders that specifically authorize the use of caller
identification manipulation. The Act also makes clear that it ``does
not prohibit any lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the United States,
a State or a political subdivision of a State, or of an intelligence
agency of the United States.'' The proposed rules therefore incorporate
the two exemptions specified in the Act, and expand the exemption for
law enforcement activities to cover protective and intelligence
activities. The Commission seeks comment on this proposal.
14. The Act gives the Commission authority to adopt additional
exemptions to the prohibition on using caller ID spoofing as the
Commission determines appropriate. Therefore, the Commission also seeks
comment on whether it should adopt any additional exemptions. Do
carriers or interconnected VoIP providers engage in legitimate conduct
that could be implicated by the proposed rules? For example, in many
instances, the carrier or provider merely transmits the caller ID
information it receives from another carrier, provider, or customer.
Should the Commission expressly exempt carrier or provider conduct
under these circumstances, even if the information conveyed is not
accurate? Should the Commission more generally exempt conduct by
carriers or interconnected VoIP providers that is necessary to provide
services to their customers? The Act exempts authorized activity of law
enforcement agencies and court orders that specifically authorize the
use of caller identification manipulation. Should the proposed rules
also exempt conduct by carriers or interconnected VoIP providers that
is authorized or required by law? Are any such exemptions for carriers
and interconnected VoIP providers necessary, given the Act's
requirement that a violation involve intent to defraud, cause harm, or
wrongfully obtain anything of value?
15. Some caller identification manipulation services allow
customers to select which caller identification information is
displayed. Likewise, certain services--such as pick-your-own-area-
code--enable customers to select phone numbers that are not
geographically associated with their location, and thus are potentially
misleading with respect to the ``origination of'' calls by such
persons. Does the Commission need to adopt an exemption to avoid
stifling innovative new services such as call back services or services
that involve manipulation of area codes, or location?
16. Caller ID Blocking. The Truth in Caller ID Act specifies that
it is not intended to be construed to prevent or restrict any person
from blocking the transmission of caller identification information.
The legislative history shows that Congress intended to protect
subscribers' ability to block the transmission of their own caller
identification information to called parties. Therefore, the proposed
rules provide that a person or entity that blocks or seeks to block a
caller identification service from transmitting or displaying that
person or entity's own caller identification information shall not be
liable for violating the Commission's Truth in Caller ID Act
implementing rules. The Commission seeks comment on whether the
proposed rules appropriately implement this provision of the Act.
17. Although the Commission's rules generally allow callers to
block caller ID, telemarketers are not allowed to do so. Telemarketers
are required to transmit caller identification
[[Page 16371]]
information, and the phone number they transmit must be one that a
person can call to request placement on a company-specific do-not-call
list. This requirement benefits consumers and law enforcement. It
allows consumers to more easily identify incoming telemarketing calls
and to make informed decisions about whether to answer particular
calls. It also facilitates consumers' ability to request placement on
company-specific do-not-call lists. The requirement also assists law
enforcement investigations into telemarketing complaints. Therefore,
the proposed rules specify that any person or entity that engages in
telemarketing, as defined in Sec. 64.1200(f)(10) of the Commission's
rules, remains obligated to transmit caller identification information
under Sec. 64.1601(e) of the Commission's rules. The Commission seeks
comment on this provision of the proposed rules.
18. Some entities--often the same ones that offer spoofing
services--also offer the ability to unmask a blocked number,
effectively stripping out the privacy indicator chosen by the calling
party. Are there ways that carriers and interconnected VoIP providers
can prevent third parties from overriding calling parties' privacy
choice? If so, would it be appropriate for the Commission to impose
such obligations? What legal authority does the Commission have to
address this practice? Commenters that support amending the
Commission's rules should identify specific rule changes that will
prevent these practices while ensuring that consumers' privacy
preferences are respected.
19. Finally, we seek comment on the benefits and burdens, including
the burdens on small entities, of adopting the proposed rules
implementing the provisions of the Truth in Caller ID Act. Are there
any other considerations the Commission should take into account as it
evaluates rules to implement the Act?
B. Enforcement Issues
20. The Truth in Caller ID Act provides for additional forfeiture
penalties for violations of section 227(e) of the Communications Act,
and new procedures for imposing and recovering such penalties. In order
to implement the forfeiture provisions of the Truth in Caller ID Act,
we propose modifications to the Commission's forfeiture rules. We seek
comment on the proposed amendments to our forfeiture rules and on some
additional issues relating to enforcement of the Truth in Caller ID
Act.
21. Amount of Penalties. The Act specifies that the penalty for a
violation of the Act ``shall not exceed $10,000 for each violation, or
3 times that amount for each day of a continuing violation, except that
the amount assessed for any continuing violation shall not exceed a
total of $1,000,000 for any single act or failure to act.'' These
forfeitures are in addition to penalties provided for elsewhere in the
Communications Act. Thus the Truth in Caller ID Act establishes the
maximum amount of additional forfeiture the Commission can assess for a
violation of the Act, but it does not specify how the Commission should
determine the forfeiture amount in any particular situation. Therefore,
the Commission proposes to amend Sec. 1.80(b) of our rules to include
a provision specifying the maximum amount of the additional fines that
can be assessed for violations of the Truth in Caller ID Act. The
Commission also proposes to employ the balancing factors we typically
use to inform the amount of a forfeiture, which are set forth in
section 503(b)(2)(E) of the Communications Act and Sec. 1.80(b)(4) of
the Commission's rules. The balancing factors include ``the nature,
circumstances, extent, and gravity of the violation, and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
require.'' The Commission seeks comment on these proposals.
22. Procedure for Determining Penalties. With respect to the
procedure for determining or imposing a penalty, the Act provides that
``[a]ny person that is determined by the Commission, in accordance with
paragraphs (3) and (4) of section 503(b) [of the Communications Act],
to have violated this subsection shall be liable to the United States
for a forfeiture penalty.'' It also states that ``[n]o forfeiture
penalty shall be determined under clause (i) against any person unless
such person receives the notice required by section 503(b)(3) or
section 503(b)(4) [of the Communications Act].'' Taken together,
sections 503(b)(3) and 503(b)(4) allow the Commission to impose a
forfeiture penalty against a person through either a hearing or a
written notice of apparent liability (NAL), subject to certain
procedures. The Truth in Caller ID Act makes no reference to section
503(b)(5) of the Communications Act, which states that the Commission
may not assess a forfeiture under any provision of section 503(b)
against any person, who: (i) ``does not hold a license, permit,
certificate, or other authorization issued by the Commission;'' (ii)
``is not an applicant for a license, permit, certificate, or other
authorization issued by the Commission;'' or (iii) is not ``engaging in
activities for which a license, permit, certificate, or other
authorization is required,'' unless the Commission first issues a
citation to such person in accordance with certain procedures. That
omission suggests that Congress intended to give the Commission the
authority to proceed expeditiously to stop and, where appropriate,
assess a forfeiture against, unlawful caller ID spoofing by any person
or entity engaged in that practice without first issuing a citation.
Therefore, the proposed rules would allow the Commission to determine
or impose a forfeiture penalty for a violation of section 227(e)
against ``any person,'' regardless of whether that person holds a
license, permit, certificate, or other authorization issued by the
Commission; is an applicant for any of the identified
instrumentalities; or is engaged in activities for which one of the
instrumentalities is required. The proposed rules clarify that the
citation-first requirements in the Commission's rules do not apply to
penalties imposed for violations of the Truth in Caller ID Act. The
Commission invites comment on this interpretation of the relationship
between the Truth in Caller ID Act and section 503(b)(5) of the
Communications Act.
23. In contrast to section 503(b)(1)(B) of the Communications Act,
which provides for a forfeiture penalty against anyone who has
``willfully or repeatedly'' failed to comply with any provisions of the
Communications Act, or any regulations issued by the Commission under
the Act, the Truth in Caller ID Act does not require ``willful'' or
``repeated'' violations to justify imposition of a penalty. Therefore,
the Commission proposes to amend Sec. 1.80(a) of the Commission's
rules to add a new paragraph (a)(4) providing that forfeiture penalties
may be assessed against any person found to have ``violated any
provision of section 227(e) or of the rules issued by the Commission
under that section of the Act.'' The Commission seeks comment on that
proposal.
24. Statute of Limitations. The Truth in Caller ID Act specifies
that ``[n]o forfeiture penalty shall be determined or imposed against
any person under [section 227(e)(5)(i)] if the violation charged
occurred more than 2 years prior to the date of issuance of the
required notice or notice of apparent liability.'' This statute differs
from the one in section 403(b)(6) of the Communications Act, which
provides for a one-year statute of limitations. The Commission proposes
to adopt a two-year statute of limitations for taking
[[Page 16372]]
action on violations of the Truth in Caller ID Act. The Commission
seeks comment on this proposal.
25. Miscellaneous. The Commission also takes this opportunity to
propose redesignating as ``Note to paragraph 1.80(a)'' the undesignated
text in section 1.80(a) and revising the new ``Note to paragraph
1.80(a)'' to address issues not directly relating to implementation of
the Truth in Caller ID Act. First, in order to ensure that the language
in the rule encompasses the language used in all of the statutory
provisions, the Commission proposes amending the rule to say that the
forfeiture amounts set forth in Sec. 1.80(b) are inapplicable ``to
conduct which is subject to a forfeiture penalty or fine'' under the
various statutory provisions listed. (Emphasis added.) Second, the
Commission proposes changing the references to sections 362(a) and
362(b) to sections 364(a) and 364(b) in order that the statutory
provision references match those used in the Communications Act, rather
than the U.S. Code. (Section 364 of the Communications Act is codified
as 47 U.S.C. 362.) Third, the Commission proposes deleting section
503(b) from the list of statutory provisions to which the forfeiture
amounts in Sec. 1.80(b) do not apply, because the inclusion was error;
Sec. 1.80(b) implements the forfeiture amounts of section 503(b), and
so the penalties set forth in Sec. 1.80(b) apply to forfeiture under
section 503(b). The Commission seeks comment on these proposed changes
to its forfeiture rules.
C. Report
26. The Truth in Caller ID Act requires the Commission to issue a
report to Congress within six months of the law's enactment on
``whether additional legislation is necessary to prohibit the
provisions of inaccurate caller identification information in
technologies that are successor or replacement technologies to
telecommunications services or IP-enabled voice services.'' The
Commission seeks comment on which technologies parties anticipate will
be successor or replacement technologies to telecommunications services
or IP-enabled voice services. The Commission also seeks comment on the
provision of inaccurate caller ID information with respect to such
technologies, and whether the Commission will need additional authority
to address concerns about caller ID spoofing associated with such
successor or replacement technologies. In particular, the Commission
seeks comment on communications services that are not interconnected
with the public switched telephone network. In addition, the Commission
seeks comment on whether there are other issues that the Commission
should include in its report to Congress.
Procedural Matters
A. Paperwork Reduction Act Analysis
27. This document does not contain proposed information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified information collection burdens 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).
B. Initial Regulatory Flexibility Analysis
28. As required by the Regulatory Flexibility Act of 1980, as
amended, the Commission has prepared an Initial Regulatory Flexibility
Analysis (IRFA) for this NPRM of the possible significant economic
impact on a substantial number of small entities by the policies and
rules proposed in this notice of proposed rulemaking. Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments
on the further notice of proposed rulemaking. The Commission will send
a copy of the notice of proposed rulemaking, including this IRFA, to
the Chief Counsel for Advocacy of the SBA.
C. Ex Parte Presentations
29. This proceeding shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented is generally required. Other requirements
pertaining to oral and written presentations are set forth in Sec.
1.1206(b) of the Commission's rules.
Ordering Clauses
30. Accordingly, it is ordered that, pursuant to section 2 of the
Truth in Caller ID Act of 2009, Pub. Law 11-331, and sections 1, 4(i),
4(j), 227, and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i), 154(j), 227 and 303(r) this Notice, with all
attachments, is adopted.
31. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Initial Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this Notice of Proposed Rule Making
(NPRM). Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments provided in this NPRM. The Commission will send
a copy of this NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).
A. Need for, and Objectives of, the Proposed Rules
2. The Truth in Caller ID Act of 2009 (Truth in Caller ID Act, or
Act) was enacted on December 22, 2010. The Act prohibits anyone in the
United States from causing any caller identification service to
knowingly transmit misleading or inaccurate caller ID information with
the intent to defraud, cause harm, or wrongfully obtain anything of
value. The Truth in Caller ID Act requires the Commission to issue
implementing regulations within six months of the law's enactment. It
also requires the Commission, by the same date, to submit a report to
Congress on ``whether additional legislation is necessary to prohibit
the provision of inaccurate caller identification information in
technologies that are successor or replacement technologies to
telecommunications services or IP-enabled voice services.'' The NPRM
proposes to (i) add a new section and new definitions to the
Commission's current rules governing Calling Party Number (CPN)
services, 47 CFR 64.1600 et seq., and (ii) enhance the Commission's
forfeiture rules, 47 CFR 1.80.
3. The proposed additions to the Commission's CPN rules are modeled
on the Act's prohibition against engaging in caller ID spoofing with
fraudulent or harmful intent. The proposed rules would prohibit any
person or entity in the United States, with the intent to defraud,
cause harm, or wrongfully obtain anything of value, from knowingly
causing, directly or indirectly, any caller identification
[[Page 16373]]
service to transmit or display misleading or inaccurate caller
identification information. The Act directs the Commission to exempt
from its regulations: (i) any authorized activity of a law enforcement
agency; and (ii) court orders that specifically authorize the use of
caller identification manipulation. The Act also makes clear that it
``does not prohibit any lawfully authorized investigative, protective,
or intelligence activity of a law enforcement agency of the United
States, a State or a political subdivision of a State, or of an
intelligence agency of the United States.'' The proposed rules
therefore incorporate the two exemptions specified in the Act, and
expand the exemption for law enforcement activities to cover protective
and intelligence activities.
4. The proposed amendments to the Commission's forfeiture rules are
intended to implement the penalties and procedures for imposing
penalties provided for in the Act. The Act specifies that the penalty
for a violation of the Act ``shall not exceed $10,000 for each
violation, or 3 times that amount for each day of a continuing
violation, except that the amount assessed for any continuing violation
shall not exceed a total of $1,000,000 for any single act or failure to
act.'' These forfeitures are in addition to penalties provided for
elsewhere in the Communications Act. Therefore, the proposed amendments
to Sec. 1.80(b) of the Commission's rules include a provision
specifying the maximum amount of the additional fines that can be
assessed for violations of the Truth in Caller ID Act. Also, consistent
with the specifications of the Act, the proposed rules would allow the
Commission to determine or impose a forfeiture penalty for a violation
of section 227(e) against ``any person,'' regardless of whether that
person holds a license, permit, certificate, or other authorization
issued by the Commission; is an applicant for any of the identified
instrumentalities; or is engaged in activities for which one of the
instrumentalities is required.
5. The proposed rules do not impose recording keeping or reporting
obligations on any entity. The NPRM does, however, seek comment on
whether the Commission can and should adopt rules imposing obligations
on providers of caller ID spoofing services. The NPRM also seeks
comment on whether there are ways that carriers and interconnected VoIP
providers can prevent third parties from unmasking a blocked number and
overriding calling parties' privacy choice.
B. Legal Basis
6. The proposed action is authorized under the Truth in Caller ID
Act, Pub. Law 111-331, codified at 47 U.S.C. 227(e), and sections 1,
4(i), 4(j), and 303 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i)-(j), and 303.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
7. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business'' and ``small organization.'' In addition, the term
``small business'' has the same meaning as the term ``small business
concern'' under the Small Business Act. A small business concern is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the SBA.
8. Small Business. Nationwide as of 2009, there are approximately
27.5 million small businesses, according to the SBA.
9. Small Organizations. Nationwide as of 2002, there were
approximately 1.6 million small organizations. A ``small organization''
is generally ``any not-for-profit enterprise which is independently
owned and operated and is not dominant in its field.''
10. The Small Businesses and Small Organizations that will be
directly affected by the proposed rules are those that knowingly spoof
caller ID with the intent to defraud, cause harm, or wrongfully obtain
anything of value. We are not aware of any attempts to quantify the
number of small businesses or organizations engaged in such practices,
nor have we have identified a feasible way to quantify the number of
such entities.
11. In addition to entities that spoof their caller identification
information, there are entities that provide caller ID spoofing
services--services that make it possible for callers to alter or modify
the caller identification information that is displayed to call
recipients by their caller ID services. We have not proposed rules that
directly affect providers of caller ID spoofing services, however, the
NPRM requests comment on whether the Commission can and should adopt
rules imposing obligations on providers of caller ID spoofing services.
We are not aware of any attempts to quantify the number of caller ID
spoofing services and we have not identified a feasible way to quantify
the number of such entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
12. The proposed rules prohibit any person or entity acting with
the intent to defraud, cause harm, or wrongfully obtain anything of
value from knowingly causing a caller ID service to alter or manipulate
caller ID information. That prohibition does not distinguish between
large businesses and entities, small businesses and entities, or
individuals. The NPRM does not propose rules that include any reporting
or record keeping requirements. However, the NPRM does invite comment
on whether the Commission can and should adopt rules imposing
obligations, including record keeping and reporting obligations, on
providers of caller ID spoofing services when they are not themselves
acting with intent to defraud, cause harm, or wrongfully obtain
anything of value. Certain providers of caller ID spoofing services may
be considered small businesses or small entities.
E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
13. The Truth in Caller ID Act, which prohibits anyone in the
United States from causing any caller identification service to
knowingly transmit misleading or inaccurate caller ID information with
the intent to defraud, cause harm, or wrongfully obtain anything of
value, does not distinguish between small entities and other entities
and individuals. The Commission has sought comment on the benefits and
economically adverse burdens, including the burdens on small entities,
of adopting the proposed rules implementing the provisions of the Truth
in Caller ID Act. In addition the Commission seeks comment, focused on
the issue of reducing economically adverse impact of the proposed rules
on small entities, on alternatives to any proposed rule, or of
alternative ways of implementing any proposed rule.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
14. None.
List of Subjects
47 CFR Part 1
Penalties.
[[Page 16374]]
47 CFR Part 64
Communications common carriers, Caller identification information,
Telecommunications, Telegraph, Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 1 and 64 as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1, of Title 47 of the Code of
Federal Regulation is revised to read as follows:
Authority: 15 U.S.C. 79 et seq; 47 U.S.C. 151, 154(i), 154(j),
155, 157, 225, 227, 303(r), and 309.
Sec. 1.80 [Amended]
2. Amend section 1.80 as follows:
a. Designate the undesignated paragraph following (a)(4) as ``Note
to Paragraph (a)'' and revise it;
b. Redesignate paragraphs (a)(4), (b)(3), (b)(4), (b)(5), and
(c)(3), as paragraphs (a)(5), (b)(4); (b)(5), (b)(6), and (c)(4),
respectively;
c. Redesignate ``Note to Paragraph (b)(4)'' as ``Note to paragraph
(b)(5)'';
d. Add new paragraphs (a)(4), (b)(3), and (c)(3);
e. Revise redesignated paragraph (b)(4); and
f. Revise paragraph (d).
Sec. 1.80 Forfeiture proceedings.
(a) * * *
(4) Violated any provision of section 227(e) of the Communications
Act or of the rules issued by the Commission under section 227(e) of
the Act; or
Note to pararaph (a): A forfeiture penalty assessed under this
section is in addition to any other penalty provided for by the
Communications Act, except that the penalties provided for in
paragraphs (b)(1), (b)(2), (b)(3), (b)(4) of this section shall not
apply to conduct which is subject to a forfeiture penalty or fine
under sections 202(c), 203(e), 205(b), 214(d), 219(b), 220(d),
223(b), 364(a), 364(b), 386(a), 386(b), 506, and 634 of the
Communications Act. The remaining provisions of this section are
applicable to such conduct.
* * * * *
(b) * * *
(3) Any person determined to have violated section 227(e) of the
Communications Act or of the rules issued by the Commission under
section 227(e) of the Communications Act shall be liable to the United
States for a forfeiture penalty of not more than $10,000 for each
violation or three times that amount for each day of a continuing
violation, except that the amount assessed for any continuing violation
shall not exceed a total of $1,000,000 for any single act or failure to
act. Such penalty shall be in addition to any other forfeiture penalty
provided for by the Communications Act.
(4) In any case not covered by paragraphs (b)(1), (b)(2) or (b)(3)
of this section, the amount of any forfeiture penalty determined under
this section shall not exceed $16,000 for each violation or each day of
a continuing violation, except that the amount assessed for any
continuing violation shall not exceed a total of $112,500 for any
single act or failure to act described in paragraph (a) of this
section.
* * * * *
(c) * * *
(3) In the case of a forfeiture imposed under section 227(e), no
forfeiture will be imposed if the violation occurred more than 2 years
prior to the date on which the appropriate notice is issued.
(d) Preliminary procedure in some cases; citations. Except for a
forfeiture imposed under subsection 227(e)(5) of the Act, no forfeiture
penalty shall be imposed upon any person under this section of the Act
if such person does not hold a license, permit, certificate, or other
authorization issued by the Commission, and if such person is not an
applicant for a license, permit, certificate, or other authorization
issued by the Commission, unless, prior to the issuance of the
appropriate notice, such person:
(1) Is sent a citation reciting the violation charged;
(2) Is given a reasonable opportunity (usually 30 days) to request
a personal interview with a Commission official, at the field office
which is nearest to such person's place of residence; and
(3) Subsequently engages in conduct of the type described in the
citation.
However, a forfeiture penalty may be imposed, if such person is
engaged in (and the violation relates to) activities for which a
license, permit, certificate, or other authorization is required or if
such person is a cable television operator, or in the case of
violations of section 303(q), if the person involved is a nonlicensee
tower owner who has previously received notice of the obligations
imposed by section 303(q) from the Commission or the permittee or
licensee who uses that tower. Paragraph (c) of this section does not
limit the issuance of citations. When the requirements of this
paragraph have been satisfied with respect to a particular violation by
a particular person, a forfeiture penalty may be imposed upon such
person for conduct of the type described in the citation without
issuance of an additional citation.
* * * * *
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
3. The authority citation for part 64 is revised to read as
follows:
Authority: 47 U.S.C. 154, 254(k), 227; secs. 403(b)(2)(B), (c),
Pub. L. 104-104, 100 Stat. 56. Interpret or apply 47 U.S.C. 201,
218, 222, 225, 226, 207, 228, and 254(k) unless otherwise noted.
4. Section 64.1600 is amended by redesignating paragraphs (c), (d),
(e) and (f) as paragraphs (e), (f), (i) and (j) respectively and by
adding new paragraphs (c), (d), (g), and (h) to read as follows:
Sec. 64.1600 Definitions.
* * * * *
(c) Caller identification information. The term ``Caller
identification information'' means information provided by a caller
identification service regarding the telephone number of, or other
information regarding the origination of, a call made using a
telecommunications service or interconnected VoIP service.
(d) Caller identification service. The term ``Caller identification
service'' means any service or device designed to provide the user of
the service or device with the telephone number of, or other
information regarding the origination of, a call made using a
telecommunications service or interconnected VoIP service. Such term
includes automatic number identification services.
* * * * *
(g) Information regarding the origination. The term ``Information
regarding the origination'' means any:
(1) Telephone number;
(2) Portion of a telephone number, such as an area code;
(3) Name;
(4) Location information; or
(5) Other information regarding the source or apparent source of a
telephone call
(h) Interconnected VoIP service. The term ``Interconnected VoIP
service'' has the same meaning given the term ``Interconnected VoIP
service'' in 47 CFR 9.3 as it currently exists or may hereafter be
amended.
Sec. 64.1604 [Redesignated as Sec. 64.1605]
5. Section 64.1604 is redesignated as Sec. 64.1605, and a new
section 64.1604 is added to read as follows:
[[Page 16375]]
Sec. 64.1604 Prohibition on transmission of inaccurate or misleading
caller identification information.
(a) No person or entity in the United States, shall, with the
intent to defraud, cause harm, or wrongfully obtain anything of value,
knowingly cause, directly or indirectly, any caller identification
service to transmit or display misleading or inaccurate caller
identification information.
(b) Exemptions. Paragraph (a) of this section shall not apply to:
(1) Lawfully authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a State, or
a political subdivision of a State, or of an intelligence agency of the
United States; or
(2) Activity engaged in pursuant to a court order that specifically
authorizes the use of caller identification manipulation.
(c) A person or entity that blocks or seeks to block a caller
identification service from transmitting or displaying that person or
entity's own caller identification information shall not be liable for
violating the prohibition in paragraph (a) of this section. This
subsection does not relieve any person or entity that engages in
telemarketing, as defined in Sec. 64.1200(f)(10) of the obligation to
transmit caller identification information under Sec. 64.1601(e).
[FR Doc. 2011-6877 Filed 3-22-11; 8:45 am]
BILLING CODE 6712-01-P