Award Winning Blog

Monday, January 14, 2019

The FCC Really, Really Does Care About Making Spoofing Illegal

            My prior blog entry noted that an unexpected consequence of classifying texting as an information service lies in having to treat texting labels and other enhancements as information services as well.  See In a nutshell, I reasoned that if texting constitutes an information service, then spoofing must as well, thereby disqualifying it from being regulatable as a special type of information service directly integrated with a telecommunications service, such as Caller ID.

            Spoofing of information service classified texting cannot qualify as an information service designed to "manage, control, or execute operation of a telecommunications system or the management of a telecommunications service.”  If spoofing constitutes an information service by itself, then it remains an information service when integrated with another information service, such as the newly clarified FCC determination that texting fits solely within the information service classification.

            Given the FCC’s dichotomous thinking, a service must fit entirely in the telecommunications service classification, or the information service category, with a hybrid combination occurring only when an information service supports—and is subordinate to—a clearly telecommunications service offering.  The FCC can regulate spoofing of telephone caller IDs, because the data processing, which manipulates and misrepresents the source of a call, clears acts on a telephone call that remains classified as a telecommunications service.

            Soon after releasing its “clarification” of the regulatory status of texting as an information service, the FCC has turned its attention to spoofing as mandated by a recent and rare amendment to the Communications Act of 1934.  See Implementing the Anti-Spoofing Provisions of the RAY BAUM’S Act, Notice of Proposed Rulemaking, WC Docket Nos. 18-335, 11-39,  FCC-CIRC1901-05 (draft publicly released Jan. 3, 2019);

            The FCC really, really has to care about spoofing, because the general public has become so ticked off by the proliferation of robocalls and Caller-ID trickery. But how can the FCC satisfy its new congressional mandate while at the same time expanding its information service, deregulatory campaign?  Answer: Ignore what it just did and regulate spoofing regardless of what kind of service it misrepresents.

            The FCC has received a clear congressional mandate to expand globally its jurisdictional reach over faked Caller-ID letters and numbers, questionable in terms of geographical reach and effective implementation.  The Commission also assumes it has a legislative mandate to ignore its preexisting telecommunications service/information service regulatory dichotomy and bolster its enforcement of Truth in Caller ID rules for both telecommunications service telephone calls and now clearly classified information service texting. 

            How clever, particularly coming from a regime hellbent to reduce the reach of so-called Title I “ancillary jurisdiction” and the overall regulatory wingspan of the FCC. 

            To pull this dereg/re-reg gambit, the FCC has to pursue self-induced amnesia.  First the Commission has to ignore what it just did by way of reclassifying the overall regulatory treatment of texting.  Only under self-induced amnesia can interpret applicable legislation as re-establishing jurisdiction and enforcement authority over texting regardless of what the Commission did less than a month ago by way of insulating the service from government oversight.

            At best the FCC can pursue this, rather disingenuous spin:

            The Commission can state that it has received a clear and unambiguous statutory mandate to regulate texting as least insofar as spoofed numbers and letters are concerned.  With a specific congressional mandate, the FCC presumably can opt to ignore its grand deregulatory pronouncement for texting, by claiming that a specific provision in the Communications Act nullifies its otherwise applicable interpretation of other Communications Act provisions that would have led to a different, more deregulatory posture, i.e., the information service classification of texting.

            I am confused just what the FCC sought to accomplish in “clarifying” the regulatory status of texting, particularly when days after declaring text largely unregulatable, the FCC has to backtrack big time.  Conclusion: we have a doctrine, result-driven, deregulation obsessed FCC, trigger happy to brand anything wire- or radio-based an information service, no matter how unsustainable based on real world considerations such as the big money in criminally duping consumers to rely on falsified identification of call and text originators.