[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Proposed Rules]
[Pages 44-47]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28612]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0 and 64

[EB Docket No. 20-374; FCC 20-174; FRS 17331]


Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and 
Deterrence Act (TRACED Act)

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission proposes rules to implement 
the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and 
Deterrence Act (TRACED Act) to streamline the process by which private 
entities may submit information to the Commission about violations of 
the Communications Act.

DATES: Comments are due on or before February 3, 2021 and reply 
comments are due on or before February 18, 2021.

ADDRESSES: You may submit comments, identified by EB Docket No. 20-374, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy 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.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: Contact the FCC to request reasonable 
accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Daniel Stepanicich of the Telecommunications 
Consumers Division, Enforcement Bureau, at [email protected] 
or (202) 418-7451.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 20-174, EB Docket No. 20-374, adopted and 
released on December 8, 2020. The full text of this document is 
available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-20-174A1.pdf. To request this document in accessible 
formats for people with disabilities (e.g., Braille, large print, 
electronic files, audio format, etc.) or to request reasonable 
accommodations (e.g., accessible format documents, sign language 
interpreters, CART, etc.), send an email to [email protected] or call the 
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis

    1. In this Notice of Proposed Rulemaking, the Federal 
Communications Commission (Commission) proposes to implement

[[Page 45]]

section 10(a) of the Pallone-Thune Telephone Robocall Abuse Criminal 
Enforcement Act (TRACED Act). Unlawful robocalls plague the American 
public. Such calls are frequently coupled with misleading or inaccurate 
telephone numbers displayed as caller ID information, an act known as 
spoofing. Spoofed calls are often used to facilitate fraudulent or 
other harmful activities. Congress enacted the Pallone-Thune Telephone 
Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) to 
aid efforts to curb illegal robocalling. Congress recognized the value 
of industry cooperation in fighting unlawful spoofed robocalls and took 
steps to formalize such cooperation.
    2. In particular, Congress sought to enhance the ability of private 
entities to convey concerns about calls and texts that violate robocall 
or caller ID spoofing restrictions. Specifically, Congress directed the 
Commission to establish regulations, no later than June 30, 2021, to 
create a process that ``streamlines the ways in which a private entity 
may voluntarily share with the Commission information relating to'' a 
call or text message that violates the law regarding robocalls or 
spoofing. This Notice of Proposed Rulemaking proposes and seeks comment 
on rules to implement this mandate. We propose to establish an online 
web portal where private entities may submit information about 
violations of sections 227(b) and 227(e) of the Communications Act. 
Under the proposal, the Commission's Enforcement Bureau would monitor 
the portal.
    3. Definition of Private Entity. We must first determine what 
constitutes a ``private entity'' for purposes of section 10 of the 
TRACED Act. Given the breadth of the term ``entity,'' which typically 
goes beyond just persons, we propose to define ``private entity'' to 
exclude only governments; in other words, a private entity is anyone 
(an individual, a company, an organization, an association, etc.) that 
is not a public entity. We note that Congress did not define the term 
``private entity'' in the TRACED Act, but in other laws Congress has 
defined ``private entity'' in a similar manner. We seek comment on our 
proposed interpretation, and whether there is a basis for a different 
interpretation of what constitutes a private entity.
    4. Streamlined Process. We propose to create a mechanism for 
private entities to submit information about suspected robocall and 
spoofing violations directly to the Enforcement Bureau. We propose to 
create an online portal located on the FCC website that the Enforcement 
Bureau would monitor. We believe that this will streamline the 
collection of information pertaining to robocall and spoofing 
violations, in conformance with section 10(a) of the TRACED Act. We 
seek comment on this proposal. We propose that this mechanism will be 
in addition to, and distinct from, the informal complaint process that 
the Consumer and Governmental Affairs Bureau manages. We anticipate 
that private entities will use the portal to submit information about 
suspected robocall or spoofing violations (i.e., ``tips''). Based on 
our experience, we expect that the portal will be particularly valuable 
to employees who suspect that their company is violating the law, and 
third parties who have been disrupted by unlawful spoofers. Consumers 
should continue to submit complaints about robocalls and spoofed calls 
through the Consumer and Governmental Affairs Bureau's informal 
consumer complaint process. We seek comment on this proposal. We also 
seek comment on alternative or additional methods to streamline 
collection of information from private entities for potential 
enforcement of robocalling or spoofing violations.
    5. We propose that the online form would require certain minimum 
information, including the name of the private entity, a point of 
contact, the caller ID information displayed as well as the phone 
numbers affected by the robocalling incident, the date(s) and time(s) 
of the relevant calls or texts, the name of the private entity's 
service provider, and a description of the problematic calls or texts. 
We propose to allow private entities to submit additional information. 
We invite input on this proposal and seek comment on what other 
information we should require.
    6. We further invite comment on whether there are any regulatory or 
statutory obligations or mandates that we should consider in developing 
the new streamlined process for collecting information from private 
entities under the definition we propose. Specifically, are there any 
laws or regulations that currently deter private entities from sharing 
data with the Commission regarding robocalls and spoofed calls and 
texts? What confidentiality assurances, if any, are necessary to ensure 
that a private entity would not open itself up to potential liability 
for any such sharing.
    7. What other incentives are needed to encourage private entities 
to share information with the Commission about illegal robocalling or 
spoofing campaigns in a timely manner? For example, should we consider 
creating a safe harbor for private entities that share information 
through the web portal, and if so, what should be the scope of any such 
safe harbor? Would additional safe harbor protections be necessary and 
appropriate to encourage timely reporting of violations? We invite 
specific suggestions for safe harbors, including our legal authority to 
adopt such suggestions.
    8. No Impact on Informal Consumer Complaint Process. We note that 
our actions here would not affect the process by which a consumer 
submits an informal complaint about a robocall or spoofed call. The 
Commission receives thousands of informal consumer complaints a month 
involving unwanted calls, including robocalls and robotexts. The 
unwanted calls complaint form asks for information such as date and 
time of the incident, caller ID information displayed, telephone number 
where the unwanted call was received, information about the consumer's 
telephone service, and a description of the unwanted call. The Consumer 
and Governmental Affairs Bureau uses this information to inform 
Commission consumer protection policies as well as for analytical and 
consumer education purposes. It also forwards these complaints to the 
Enforcement Bureau, which may use them to pursue enforcement actions. 
We recognize that consumers might mistakenly file complaints with the 
new streamlined process rather than the existing consumer complaint 
process. In such cases, we propose that the Enforcement Bureau will 
forward such consumer complaints to the Consumer and Governmental 
Affairs Bureau. And to mitigate that impact, we propose that the new 
portal clearly explain its purpose and intended uses. We seek comment 
on these proposals.
    9. Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on small entities by the policies 
and rules addressed in the Notice of Proposed Rulemaking. Written 
public comments are requested on the IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments on the 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 Small Business Administration 
(SBA). In addition, the Notice of Proposed Rulemaking and IRFA (or 
summaries

[[Page 46]]

thereof) will be published in the Federal Register.
    10. In the Notice of Proposed Rulemaking, the Commission proposes 
to streamline the process for private entities to submit information to 
the Commission about a violation of 47 U.S.C. 227(b) or 47 U.S.C. 
227(e). The Commission proposes to create a web portal where private 
entities can submit robocall violation information that will be 
monitored and reviewed by the Enforcement Bureau. Additionally, the 
Commission proposes to define ``private entity'' as any individual or 
entity other than a public entity.
    11. The proposed action is authorized pursuant to sections 4(i) and 
4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j), and 227, and section 10(a) of the Pallone-Thune Telephone 
Robocall Abuse Criminal Enforcement and Deterrence Act, Public Law 116-
105, 133 Stat. 3274.
    12. 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,'' ``small organization,'' and ``small governmental 
jurisdiction.'' 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 that: (1) Is independently owned 
and operated; (2) is not dominant in its field of operations; and (3) 
satisfies any additional criteria established by the SBA.
    13. Small Business, Small Organizations, and Small Governmental 
Jurisdictions. Our action may, over time, affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three broad groups of small entities that could potentially 
be directly affected herein. First, while there are industry specific 
size standards for small businesses that are used in the RFA, according 
to data from the SBA's Office of Advocacy, in general a small business 
is an independent business having fewer than 500 employees. These types 
of small businesses represent 99.9 percent of all businesses in the 
United States, which translates to 30.7 million businesses.
    14. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2018, there were 
approximately 571,709 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    15. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty-thousand.'' The rules 
proposed in this Notice of Proposed Rulemaking exclude public entities 
and therefore do not apply to small governmental jurisdictions.
    16. The Commission does not expect the rules proposed in the Notice 
of Proposed Rulemaking will impose any new and/or additional reporting 
or recordkeeping and/or compliance obligations on small entities. The 
proposed web portal is a completely voluntary process that small 
entities may use to submit information about robocall or spoofing 
violations. Small entities are advised to retain copies of their 
submissions to the Commission as well any supporting documentation 
should the Bureau wish to follow-up with the complainant for more 
information.
    17. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) the exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    18. Congress directed the Commission to streamline the process for 
private entities to submit information about robocall violations. We 
determined that creating a web portal would best meet the Congressional 
mandate while also placing as few burdens as possible on private 
entities. Furthermore, the use of the portal is entirely voluntary and 
does not place any additional requirements on small entities. We also 
considered whether to make changes to the existing Consumer Complaint 
Center, but we determined that any such changes would be disruptive and 
counterproductive to consumers and small entities. We propose to give 
maximum flexibility to small entities as they may still continue to 
submit robocall complaints to the Consumer Complaint Center. This 
flexibility limits any undue burdens on small entities. We seek comment 
on whether we should consider any alternative proposals to reduce the 
impact on small entities.
    19. Initial Paperwork Reduction Act of 1995 Analysis. The Notice of 
Proposed Rulemaking contains proposed new information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we seek specific comment on how we might further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.
    20. Ex Parte Presentations--Permit-But-Disclose. This proceeding 
shall be treated as a ``permit-but-disclose'' proceeding in accordance 
with the Commission's ex parte rules. Persons making ex parte 
presentations must file a copy of any written presentation or a 
memorandum summarizing any oral presentation within two business days 
after the presentation (unless a different deadline applicable to the 
Sunshine period applies). Persons making oral ex parte presentations 
are reminded that memoranda summarizing the presentation must (1) list 
all persons attending or otherwise participating in the meeting at 
which the ex parte was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filing in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meeting are deemed to be written ex parte presentations and must 
be filed consistent with section 1.1206(b) of the Commission's rules. 
In proceedings governed by section 1.49(f)

[[Page 47]]

of the Commission's rules or for which the Commission has made 
available a method of electronic filing, written ex parte presentations 
and memoranda summarizing oral ex parte presentations, and all 
attachments thereto, must be filed through the electronic comment 
filing system available for that proceeding, and must be filed in their 
native format (e.g., .doc, .xml, .ppt, searchable.pdf). Participants in 
this proceeding should familiarize themselves with the Commission's ex 
parte rules.

List of Subjects in Parts 0 and 64

    Authority delegations (Government agencies), Telecommunications.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 0 and 64 as 
follows:

PART 0--COMMISSION ORGANIZATION

0
1. The authority citation for part 0 continues to read as follows:

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, 
unless otherwise noted.

0
2. Amend Sec.  0.111 by redesignating paragraph (j) as paragraph (k) 
and adding new paragraph (j) to read as follows:


Sec.  0.111   Functions of the Bureau

* * * * *
    (j) Collects and reviews information received from private entities 
related to violations of Sec.  64.1200(a) and Sec.  64.1604(a) of this 
title.

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
3. The authority citation for part 64 continues to read as follows:

    Authority:  47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220, 
225, 226, 227, 227b, 228, 251(e), 254(k), 262, 276, 403(b)(2)(B), 
(c), 616, 620, 1401-1473, unless otherwise noted; Pub. L. 115-141, 
Div. P, sec. 503, 132 Stat. 348, 1091.

0
4. Add Sec.  64.1204 to read as follows:


Sec.  64.1204   Private entity submissions of robocall violations.

    (a) Any private entity may submit to the Enforcement Bureau 
information related to a call made in violation of Sec.  64.1200(a).
    (b) For the purposes of this section, the term ``private entity'' 
shall mean any individual or entity other than a public entity.
0
5. Add Sec.  64.1606 to read as follows:


Sec.  64.1606   Private entity submissions of spoofing violations.

    (a) Any private entity may submit to the Enforcement Bureau 
information related to a call or text message for which misleading or 
inaccurate caller identification information was caused to be 
transmitted in violation of Sec.  64.1604(a).
    (b) For the purposes of this section, the term ``private entity'' 
shall mean any individual or entity other than a public entity.

[FR Doc. 2020-28612 Filed 12-31-20; 8:45 am]
BILLING CODE 6712-01-P