'Last Week Tonight' Critique Latest Flash Point in FCC Clash Over Robocalls

Both sides agree robocalls are rising. Those studying it told us research continues to bear that out. New or enhanced regulations aren't expected soon (see 1903110072).

Pai, who hadn't watched the show, recapped the agency's many TCPA actions under his tenure. "Both from the regulatory and enforcement perspective, we are showing in word and deed that this is our top consumer protection priority," he told reporters. The episode on AT&T's HBO ended with Oliver activating a program to call all commissioners' offices every 90 minutes, seeking more TCPA action and then playing bagpipes at the end. Pai declined to offer an opinion to us on whether this sort of robocalling is legal.

Commissioner Geoffrey Starks personally believes Oliver's robocalls appear legal. "It seems that John Oliver knows good bagpipe" music, Starks said in response to our question. "There obviously is in this country a First Amendment protection for folks to petition their government" and he thinks these particular calls fall within that. Pai referred us to the Office of General Counsel, which declined comment. HBO and Last Week Tonight didn't comment.

Commissioner Brendan Carr recalled getting robocalls on his personal cellphone during the monthly meetings. On robocalls generally, he said "people are absolutely outraged about it, and rightly so." It has been a "top enforcement" priority and it’s "a tough issue to solve," he continued. "It’s OK that people are really upset about it and expressing their views."

Some commissioners and aides said their offices had gotten Oliver's calls or continue getting them.

'Offensive' Segment

Commissioner Mike O'Reilly told reporters he "didn't think much of" the episode. "I didn’t find it funny. I actually think the chairman has been very aggressive on the issue of illegal robocalls." The agency under Pai is trying to "move forward on the technology and the enforcement side," O'Rielly continued. He suggested Oliver's segment was "offensive" and said of the last FCC chairman that "this idea that Tom Wheeler’s rules were the right [way] to go" goes beyond what the law permits. "For a comedian to say, 'Oh, yeah, you should ignore the law,' that’s not going to be what I do" as an FCC member, O'Rielly said. Wheeler declined to comment.

"We are constantly monitoring these situations and ensuring that consumers are protected by aggressively pursuing enforcement actions," including at monthly meetings, Pai said. "We want the robocallers to recognize that the agency is a very active cop on the beat." He declined to discuss coming regulatory initiatives on TCPA. Citing the FCC recently cracking down on illegal robocalls from outside the U.S., he said the agency is "at the vanguard" on the overall issue.

Commissioner Jessica Rosenworcel said many TCPA petitions remain pending at her agency. She and Starks noted the regulator hasn't addressed a remand of some regulations such as on autodialers after a partial reversal at the U.S. Court of Appeals for the D.C. Circuit a year ago (see 1803160053). Starks doesn't "think that the chairman has taken up what the court kicked back to us with regards to TCPA. I think it's certainly something that we have to move as expeditiously as possible."

It's "bonkers,” Rosenworcel said of the gravity of the problem, noting monthly robocalls has risen from about 2 billion at the start of this administration to about 5 billion. "That increase is insane. Whatever this agency is doing is not enough." The "high-level fines" were "for a handful of bad actors," Rosenworcel said. Petitions are "sitting around and gathering dust," she said, her voice raised for much of these comments. "There is nothing satisfying about what the agency has done to date and everyone knows it because we have seen an expansion" of such calls, she continued.

Robocalls totaled about 5 billion monthly in the U.S. in January and February, says YouMail. "At least 50% are illegal -- they are scams or spoofed numbers," emailed CEO Alex Quilici, of such phone calls generally. "My bet, personally, is closer to 2/3rds are illegal but we don’t know if the callers have consent from the people they call."

Authentication, Blocking

Rosenworcel wants to require call authentication technologies, determine how to further increase fines and lengthen the statute of limitations. Starks, too, wants more time for penalizing each violation, "so that we can fine these folks who are" doing it and "really wham them." He wants free call blocking. The FTC backs those technologies without recommending they be mandatory.

"Robocalls really have changed the fabric of our culture, where people really don’t pick up the phone," Starks said. "It is the single highest complaint that we hear at the FCC and at the FTC," he added. "We have a problem that is getting worse, we have to address it, and something has to be done." CTIA and NCTA declined to comment.

Violations of the telemarketing sales rule are "an enforcement priority for us," said FTC Do Not Call Program Coordinator Ian Barlow Friday. Unwanted call complaints number 400,000-500,000 monthly, with 65-70 percent about a prerecorded message that falls under FTC authority, he said. "It's our top complaint. As a result, we think it's important for us to enforce these rules." The trade commission is "proud of our record" here, Barlow said: In the approximately 15 years since the no-call list was started, 126 cases were completed involving 458 corporate and 371 individual defendants totaling about $1.5 billion in judgments and $121 million collected.

The FTC wants industry/technological solutions to "the robocall problem," continued "law enforcement" actions and "consumer education," Barlow said. His advice to those on the receiving end: "hang up."

FCC Actions

The FCC stands by its actions.

"The process of establishing an FCC regulatory requirement would slow down the process of getting the framework up and running for consumers" on call authentication, a commission spokesperson emailed. "If progress on implementation of the framework becomes insufficient, Chairman Pai has made clear that he is prepared to take regulatory action" (see 1902130036). "Many call blocking services are" free, the FCC spokesperson noted. He confirmed "unwanted calls are our top consumer complaint category with about 200,000 complaints per year amounting to over 60% of the complaints we receive."

In a post Monday titled "lllegal Robocalls Are No Laughing Matter" that a spokesperson pointed us to Friday, USTelecom CEO Jonathan Spalter said, "Oliver’s seriously funny/not funny robocall segment" made "crystal clear" the problems and the illegality. "We’re succeeding in finding more bad actors faster than ever before, and helping to bring them to justice," Spalter blogged. He said the Industry Traceback Group "reduced the amount of time necessary to conduct a traceback investigation from start to finish 'from months to weeks.'"

Consumer Reports, which worked with Oliver's producer on the segment, wants the FCC to require phone companies to adopt caller authentication and offer it free; provide other "advanced technology" to stop the calls before they're received; and "issue strong rules related to the TCPA," a spokesperson emailed. Noting the FCC is reviewing the definition of autodialer, she said CR thinks "it should be up to the consumer whether or not they want to receive a robocall."