All I want for Christmas... is a break from robocalls

'Twas the time of the year when families and friends are sitting down to holiday feasts, the fireplace roars, glasses clink. But suddenly out in the hallway there arises a clatter. The host, age 32, arises to see what's the matter. His cellphone is ringing with an urgent refrain that his grandson has lost his wallet in Spain. The caller assures "grandpa" that he can save the day if only he could send 13 gift cards straight away.

Every year, billions of robocalls are placed to consumers, some of which are legitimate, but most not so much. The fraudulent calls often are "spoofed," meaning the caller falsifies caller ID information to deceive the recipient into thinking the call is from government agencies such as the Social Security Administration or the IRS, legitimate business entities, or distressed family members. A subset of such spoofed calls utilize a pre-recorded message or a live imposter who attempts to fool the call recipient into gift cards, wiring money or providing sensitive personal information.

The Federal Trade Commission recently released its annual tally of fraudulent calling in FY2021. The FTC received just over 5 million complaints about robocalls, up from 3.9 million complaints in FY 2020. About three quarters of the complaints related to pre-recorded robocalls and one-quarter related to live calls. Imposter calls topped the list, with almost 594,000 complaints received, followed by car warranty calls, with just under 450,000 complaints.

The FTC reported that in 2020 (the most recent year for which data are available) consumers were scammed out of $3.3 billion, an increase of nearly $1.5 billion over 2019. Of those losses, $1.2 billion was lost due to imposter scams. Telephone calls accounted for one-third of all fraud reports. Interestingly, younger people were much more likely to lose money in a fraud scheme than older individuals. Of people who reported their age, 44% of those aged 20-29 reported losing money to fraud, while only 20% of people aged 70-79 reported losing money, and 18% of people aged 80 and over reported losing money to fraud. But when older people did report a loss, people aged 70 years and older reported being defrauded out of a much higher median amount than any other age group.

So what can be done about this? Both the California attorney general and the Federal Communications Commission have tools to stop robocalls. In 2017, the FCC issued rules designed to stop robocalls by allowing voice service providers to block calls they believe are fraudulent. See Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, Report and Order and Further Notice of Proposed Rulemaking, 32 FCC Rcd 9706, 9709, para. 9 (2017).

In 2019, the California Legislature passed, and Gov. Gavin Newsom signed into law, the California Call Protection Act. The CCPA adds a brief section to the California Public Utilities Code that required voice service providers to implement by Jan. 1, 2021, network protocols to ensure that the caller ID information transmitted with a call over an internet protocol network matches the actual caller's number so that the caller cannot masquerade as someone else. In 2020, the FCC issued an order requiring communications companies to implement the same protocols. FCC Order 20-42. The FCC rules took effect on June 30, 2020.

A year later, enforcement is uneven. The CCPA is enforced by the California attorney general, with assistance from the California Public Utilities Commission. There is no private right of action for a customer who has received robocalls to file a lawsuit to enforce the CCPA. California Public Utilities Code Section 2893.5(c). So a consumer must wait for the California attorney general to bring an enforcement action, but a voice service provider may raise a defense by demonstrating that it made a "good faith effort" to comply. California Public Utilities Code Section 2893.5(d). The statute does not define what constitutes a good faith effort. There are no reported instances of the California AG's office or the CPUC pursuing enforcement of the CCPA.

In October and November, the FCC issued cease and desist letters to Duratel, LLC, PZ Telecommunication, LLC, Illum Telecommunication, LLC and Primo Dialler, LLC accusing them of facilitating illegal robocalls. Among the allegations are that their networks are being used for imposter calls including persons posing as agents for the Social Security Administration, the Federal Reserve, or the Department of Homeland Security and law enforcement agencies purportedly issuing arrest warrants. The carriers were instructed to take immediate steps to stop the fraudulent calls or receiving carriers would be permitted to block their traffic.

In June, the FCC issued an order establishing a streamlined process for carriers or other companies to report violations of robocalling rules. FCC 21-75 (June 17, 2021). The FCC directed its Enforcement Bureau to create and monitor a portal on its website for reporting robocall violations. Thus far, there is no information available about progress on creating the "robocall tip line." The FCC already has a process for consumers to report robocall problems, to the Consumer and Governmental Affairs Bureau.

These are good first steps. Here's to hoping that next year during the holidays the only ringing during dinner will be from the bells on Santa's sleigh. 