April 29, 2020 the Honorable Miguel Santiago Chair, Assembly
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April 29, 2020 The Honorable Miguel Santiago Chair, Assembly Communications and Conveyance Committee California State Assembly State Capitol, Room 6027 Sacramento, CA 95814 RE: OPPOSE – AB 3007 (Chau) – Automatic Dialing-Announcing Devices and Call Mitigation Technology Dear Chairman Santiago: CTIA, the trade association for the wireless communications industry, and the entire wireless industry support aggressive work to address illegal and unwanted robocalls. There are multiple efforts underway, including a federal mandate on voice service providers to use call-authentication technology and enforcement tools to police the misuse of autodialer technology. Substantial network-level mitigation technology is also being used to protect consumers from illegal robocalls, and the industry is pressing ahead on efforts like “traceback” to find the source of illegal calls. This multipronged effort to protect consumers should not be taken off course by new state mandates such as AB 3007, which suffers from substantial technical flaws. For these reasons, CTIA opposes AB 3007. All levels of government—alongside the wireless communications industry—are in the midst of an aggressive and multi-pronged attack on illegal robocalls. Providers and their partners have deployed an array of tools to fight illegal robocalls throughout the call path. Just last year, Congress enacted the bipartisan Pallone-Thune TRACED Act. This landmark legislation builds on years of industry work developing many robocall mitigation solutions in addition to other enforcement efforts, including collaboration with state Attorneys General through the Anti-Robocall Principles and cross-industry work with law enforcement through the Industry Traceback Group. The TRACED Act is spurring further efforts to protect consumers by increasing the ability of law enforcement and the Federal Communications Commission (FCC) to enforce the Telephone Consumer Protection Act (TCPA) and directing the FCC to require voice service providers to implement call authentication technologies. The FCC is moving quickly to implement the STIR/SHAKEN mandate, as well as other provisions in TRACED and is working with other federal agencies to direct gateway providers to stop apparently unlawful traffic.1 AB 3007 threatens to divert resources from these and other concerted efforts to protect consumers and introduce substantial confusion into an already complicated regulatory area. The bill creates a new obligation to offer free “call mitigation technology” and defines it in a manner that is inconsistent with existing technology and capabilities. It would expose businesses to criminal liability and enormous penalties for failure to fully implement a process that simply cannot work. 1 The Secure Telephone Identity Revisited (STIR) and Signature-based Handling of Asserted Information Using toKENs (SHAKEN) standard STIR/SHAKEN is a framework of interconnected standards. “Calls traveling through interconnected phone networks would have their caller ID ‘signed’ as legitimate by originating carriers and validated by other carriers before reaching consumers.” See https://www.fcc.gov/call-authentication. Page 2 of 3 (AB 3007 Chau) The call mitigation technology mandate is fatally flawed because it conflates the use of technology with intent, misunderstands how robocall mitigation technologies and tools work, and overlooks solutions being deployed now. AB 3007 would impose a new mandate on service providers to offer “call mitigation technology.” It would require, upon request, blocking, diverting, or otherwise preventing calls and messages from being completed based solely on the fact that the call or message is “identifie[d] as being, or as probably being, from an automatic dialing- announcing device.” By focusing on calls from an automatic dialing-announcing device, AB 3007 erroneously treats the use of automated technology to place calls as a proxy for illegality. The mandate also incorrectly assumes service providers could possibly know what equipment a calling party is using to place a call and whether a call recipient has provided consent to a call originator. Specifically, the call mitigation technology mandate would require a provider, upon request, to block calls that appear to come from an automatic dialing-announcing, unless, among other exceptions, the provider identifies the call as “originating from a caller with respect to whom the called person has provided prior express consent to receive such a call or message and has not revoked that consent.” Providers have no way of knowing the equipment calling parties use to place calls or the purpose or content of calls, let alone whether the called party has given or revoked prior express consent for any given call. Worse, the mandate misunderstands the technology behind illegal robocall mitigation. Targeting illegal robocalls is a complex endeavor. Wireless providers and their analytics engine partners have developed sophisticated, robust, and innovative solutions to separate legitimate calls from the likely bad ones. Using various data sources (which can include STIR-SHAKEN data), the voice calling ecosystem has innovated tools to authenticate, filter, score, label, and/or block traffic. The approach in AB 3007 is wrong on the technology and the methodologies for identifying and blocking problematic traffic. Robocall mitigation technology should be driven by sophisticated analytics, not guesses about what technology is used to place calls. AB 3007’s approach to mitigation is unnecessary in light of current offerings and commitments to State Attorneys General, and it is misaligned with the current threat landscape. AB 3007 would require “[e]ach telephone corporation . [to] make call mitigation technology available to any [ ] customer [residing in the state], upon request, and at no additional charge.” In addition, it subjects providers to criminal and large civil penalties if the solution does not work. AB 3007’s service mandate and price control would be unlawful wireless rate regulation, in excess of the state’s authority. Section 332(c) of the Communications Act expressly prohibits states and localities from regulating wireless rates. But more fundamentally, these mandates are unnecessary because existing practices and federal law already are protecting consumers. For example, • The multi-state Attorney General and provider commitment on robocalling, signed by California Attorney General Xavier Becerra, includes free blocking and labeling as its very first enforceable commitment: “For smartphone mobile and VoIP residential customers, make available free, easy-to-use call blocking and labeling tools and regularly engage in easily understandable outreach efforts to notify them about these tools. For all types of customers, implement network-level call blocking at no charge.” • The TRACED Act already prohibits additional line item charges for certain robocall mitigation tools, and the FCC proposed adopting the TRACED Act’s line item charge prohibition as part of its call authentication mandate. 1400 16th Street, NW · Suite 600 · Washington, DC 20036 · www.ctia.org Page 3 of 3 (AB 3007 Chau) AB 3007 needlessly would apply the call mitigation technology regulation to text messages. For the most part, federal legislative and regulatory efforts to stop illegal robocalls have generally focused on voice calls. This is because, simply stated, the wireless texting ecosystem does not face the same challenges with illegal robocalls as the voice ecosystem does. The messaging ecosystem remains safe and trusted—or “least polluted”—because messaging providers, including wireless providers, actively manage the platforms to protect consumers against illegal robotexts. The FCC has explained that its approach to text messaging regulation “enable[s] wireless providers to continue taking steps to ensure that wireless messaging remains relatively spam-free, and therefore a trusted form of communication for millions of Americans, while a contrary classification would open messaging to many of the same scams and nuisances that plague consumers of voice services today.”2 The texting ecosystem does not need regulation like AB 3007. Finally, California need not expand its definition of Automatic Dialing-Announcing Devices. The federal government already applies the TCPA to text messages, and recognizes varied exceptions, including the importance of communications between carriers and their customers. Wireless carriers communicate with their customers using text messaging to convey information in a customer-friendly, convenient, and effective manner. AB 3007 could negatively impact how carriers effectively communicate customer-friendly and wanted information to consumers. AB 3007 risks further complicating a highly complex landscape. CTIA respectfully opposes AB 3007. CTIA and its members have worked with California Attorney General Xavier Becerra and the California Legislature on consumer protection issues and stand by commitments to abating illegal and unwanted robocalls. This legislation is not necessary and will distract from the ample progress being made in multiple ongoing efforts to reduce the scourge of unwanted and illegal robocalling. Sincerely, Gerard Keegan Vice President State Legislative Affairs CC: Honorable Ed Chau Members of the Assembly Communications and Conveyance Committee Edmond Cheung, Chief Consultant Daniel Ballon, Republican Policy Consultant 2 See Wireless Messaging Declaratory Ruling, FCC 18-178, ¶ 45 (Dec. 13, 2018). 1400 16th Street, NW · Suite 600 · Washington, DC 20036 · www.ctia.org .