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The FCC Robocall Proceeding: International Insularity

In March of this year, the Federal Communications Commission (FCC) adopted an initial Notice of Inquiry (CG No. 17-59) to mitigate robocalls. In July, it adopted a Second Notice.

Mitigating spoofed telephone calls is a global problem which every country in the world has been addressing as part of a global ecosystem for many years in intergovernmental and industry bodies, in academic R&D and patent filings, and industry products with ongoing activity continuing today.

Furthermore, the telephony service globally is the subject of international treaty instruments that oblige cooperation by the United States—which is delegated to the Federal Communications Commission. Indeed, the treaty and international technical standards exist as a continuum back to 1885. Part of those obligations encompasses management of the global telephone number identifiers themselves (known as E.164 numbers)—a segment of which are allocated to the U.S. for which the responsibility is given to the FCC.

Somewhat incredulously, however, the FCC in its ongoing robocall proceeding completely ignores the global telephony ecosystem of law and intergovernmental cooperation with which it is obliged to engage. The Commission’s actions here are embarrassing acts of unilateralism that do not serve the nation well, that opens its actions to subsequent challenge on appeal, and depreciate the very purpose intended—diminishing robocalls.

In the initial Notice of Inquiry (NOI), the Commission asserts its authority to act on the basis of the Communications Act, including Telephone Consumer Protection Act (TCPA) provisions, as well as its authority over the use and allocation of telephone numbering resources. What it ignores, however, is that authority stems in significant part from the obligations the U.S. assumed as part of its ratification of multiple international telecommunication treaty instruments for which the FCC is the delegated agency to implement. The obligations include “harm” requirements pursuant to the 1988 Melbourne Convention to “take into account, the relevant provisions of ITU-T Recommendations.” Similar requirements pursuant to the World Trade Organization (WTO) General Agreement on Trade in Services (GATS) Annex on Telecommunications.

Indeed, the only mention of anything international of any nature is a single paragraph treating “internationally originated calls” in the initial notice. Somewhat simplistically, the Commission “note[s] that internationally originated calls may require special treatment” and asks if there are “any other special other special rules we should consider with respect to internationally originated calls?” It also notes “calls that originate domestically may have differences from those which originate internationally, thus requiring consideration of different objective criteria.” The topic of anything international is not even raised in the 2nd Notice, although it deals somewhat narrowly with the subject of reassigned numbers. Even here, however, one would note that this need is faced by a great many countries throughout the world who reassign numbers and cooperate in the venue which allocates these number identifiers—the ITU-T. Only a handful of formally commenting parties even responded to the question of international calls—and only to simplistically restate the question.

In the Commission’s treatment of standards in the initial Notice, it ignores the entire ecosystem of intergovernmental and industry bodies treating this subject for decades, and references only a single U.S. domestic telecom body (ATIS), and the non-organization of individuals known as the Internet Engineering Task Force which collaborates on TCP/IP internetworking platforms.

As a former senior technical staff member of the FCC, the Commission’s failure to perform a treaty-based function of the country, and total current lack of international involvement much less leadership in collaborating with its peers in 193 other countries, is disappointing. It certainly wasn’t always this way, and indeed even in the ITU Radio Sector today, it does better.

Fortunately for the world, other entities are stepping up to the plate - for which they deserve praise. At the upcoming meeting of ITU-T Study Group 11—which is the appropriate global signaling venue for telephony—China Telecom is introducing a new work item on “architecture and signaling requirement of calling identification authentication.” Ironically, the new initiative is based on one of the most thorough scholarly studies on the topic—a team of experts at Arizona State University—which was introduced at an ITU Kaleidoscope 2016 international academic outreach programme. ASU is hardly the only academic institution which has been engaged in dealing with the spoofed call challenge. Google Scholar finds thousands of technical studies, and one of the better analyses done at Georgia Tech led to the creation of Pindrop.

The dramatically diminished participation and leadership of the U.S.—including Federal agencies—in international technical venues over the past two decades is a long-term trend. So, it is would be unfair to single out the FCC here. The resources just don’t exist anymore. Nonetheless, in proceedings that inherently are international in nature and invoke fiduciary treaty responsibilities, the Commission could at least demonstrate cognizance of the related global ecosystem and facilitate outreach to the many relevant bodies involved through industry, the academic technical community, and other government agencies.

The depreciation of telecommunications treaty obligations and international insularity seem in vogue in today’s Washington politics. It is hardly the first time historically. However, the withdrawal of the U.S. into its own domestic shell never proved a winning strategy in the long run. In dealing with spoofed calls, it seems unlikely to prove effective for consumers.

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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Maybe it's not so much the FCC Frank Bulk  –  Oct 31, 2017 3:29 AM

Maybe it’s not so much the FCC is ignoring the world, but it’s trying to address 96% of all calls in a jurisdiction it has direct influence over rather than waiting 5+ years to be able to make some possible progress on the last 4%.

Interesting observation Anthony Rutkowski  –  Oct 31, 2017 11:11 AM

Practicality is good. However, it is not clear what the "5+ years" part has to do with anything. Most international global industry telecommunications SDO standards (e.g., ITU-T, ITU-R, 3GPP, ETSI) get adopted in 18-24 months these days - generally shorter than the length of a FCC proceeding. Of course, the notion also assumes that this is a technical problem - which for the most part, it is not. As the two ETSI reports make clear, this subject has been discussed in diverse international venues for more than 20 years, and that this is largely a problem in the U.S. Colleagues in those fora note also that robocalls are already illegal in the UK and Europe. So inquiring minds might ask why U.S. consumers are overwhelmingly suffering this affliction for so many years. The answer might lie in the reality that it's political, economic, and legal systems tolerate the activity. And, it is worth noting that the current proceeding is merely one of a series that has existed over decades dealing with this subject. So one of the points in the article is that maybe the FCC could learn from the collective knowledge of the rest of the world who are probably worried that the U.S. affliction might also visit the 192 other jurisdictions. Related to this is an observation threaded through some of the comments and replies in the proceeding - whatever the FCC does, without international collaboration, could simply push the U.S. threat vectors off shore. So the concern is still the same - international insularity doesn't work where integrated global networks are concerned. It is something realized in 1885 when Nation-States were much less integrated.

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