On January 4, 2021, the FCC’s Notice of Proposed Rulemaking in EB Docket No. 20-374 (“NPRM”) was published the Federal Register.  Comments are due February 3, 2021 on the FCC’s proposed online web portal for private entities to report information about robocalls, which are alleged to violate Sections 227(b) and 227(e) of the Communications Act.  Reply comments are due by February 18, 2021.

Section 10(a) of the TRACED Act[1] includes a June 30, 2021 deadline for the FCC 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.” 

The NPRM seeks comment on defining a private entity as “anyone (an individual, a company, an organization, an association, etc.) that is not a public [governmental] entity.”  The proposed streamlined process would be a new online portal monitored by the Enforcement Bureau.  IT would be distinct from the general consumer complaint portal operated by the Consumer and Governmental Affairs Bureau (“CGAB”).  The plan would be for consumers to continue reporting robocalls through the CGAB portal, while the new portal would be used by “employees who suspect that their company is violating the law, and third parties who have been disrupted by unlawful spoofers.”  Presumably, employees of a carrier that suspects upstream providers are sending the carrier robocalls could also make reports.[2]

The NPRM seeks comments on the information to be provided on the new portal; confidentiality protections for reporting parties and their organizations against liability for reporting; and “other incentives are needed to encourage private entities to share information with the Commission about illegal robocalling or spoofing campaigns in a timely manner.”  As to the latter, the FCC requests comments on whether reporting parties should receive some “safe harbor” protection.  In our view, the question of the FCC’s legal authority to adopt any such safe harbor(s).

There is a risk that an upstream carrier that is reported by a downstream carrier or by an employee thereof in an individual capacity could be sued by the upstream carrier or its principal(s) for defamation.  In many jurisdictions, however, statements made to government agencies as part of legislative, judicial, or quasi-judicial proceedings are entitled to absolute immunity so long as they are made as part of an ongoing proceeding, they are not unsolicited, and they are made to an agency whose findings need not be approved or ratified by another agency.[3]  It is important that this issue be addressed by the FCC to make it clear “Section 10(A) robocall reports, which meet the standards for such reports are subject to an absolute privilege against any defamation claims made by robocallers or those facilitating their traffic.

If you have any questions about this Advisory or would like to file comments in response to the NPRM, please contact Robert H. Jackson at rhj@commlawgroup.com or 703-714-1316 or Jonathan S. Marashlian at jsm@commlawgroup.com or 703-714-1313.

[1] Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”), Public Law No: 116-105 (2019).  https://www.congress.gov/116/plaws/publ105/PLAW-116publ105.pdf

[2] For example, assume that gateway carrier A sends incoming international calls to carrier B that, in turn, sends the calls to carrier C.  C’s employee analyzes traffic, either internally or using the analytics of a third-party, and determines some of carrier B’s traffic appear to be robocalls.  Carrier C might then contact carrier B and, after receiving information about gateway carrier A. carrier C might use the new portal to report what appear to be international robocalls.

[3] Clemens v. McNamee, 608 F.Supp.2d 811, 823-24 (S.D. Tex. 2009).