The Federal Communications Commission on Friday revealed a staggering $12.9 million fine against one individual who reportedly made illegal spoofed calls counting somewhere in the thousands, and directed them over at least 6 states. The calls were made between May and December 2018 and targeted grieving communities, jurors, and journalists. Many of the calls were also connected to local elections. This fine appears to be just the first step in the right direction for the FCC. As part of the investigation, one FCC commissioner, Jessica Rosenworcel, dissented because, according to her, “stronger penalties are needed.” Punishment for Illegal Actors The fines are a sign that the industry is finally moving towards more severe punishment for fraudulent actors within the ecosystem. The illegal spam call campaigns in question right now ran over 6 states and included: 1,496 spoofed calls to California using anti-Semitic rhetoric to attack an incumbent U.S. Senator and her Jewish heritage during the U.S. Senate primary (May 2018). 766 spoofed calls using a racist “caricature of a black dialect” to smear a 2018 Florida gubernatorial candidate (October 2018). 583 spoofed calls pretending to be from Oprah Winfrey concerned by a racist, anti-Semitic conspiracy theory in Georgia (November 2018) 750 spoofed calls to Idaho presenting threats against a Sandpoint Reader journalist (that exposed the individual) asking locals to “burn out the cancer” (September 2018) 827 calls describing Mexicans as “savages” and a “brown horde” after a murder investigation in Iowa involved an undocumented immigrant (August 2018) 2,023 racist, anti-Semitic calls to jurors during the 2018 Virginia trial of James Fields (who drove his car into a crowd of protesters) citing a conspiracy theory that blamed local officials for the crime (November and December 2018) The investigation accuses the individual of violating the Truth in Caller ID Act. According to the FCC report and Notice of Apparent Liability for Forfeiture (NAL), released January 30, the fraudulent caller used spoofing to deliberately disguise their identity. The NAL was approved by FCC Chairman Ajit Pai, as well as Commissioners Geoffrey Starks, Brendan Carr, and Michael O’Rielly, with notable dissent from Commissioner Jessica Rosenworcel: The fine in this enforcement action is nowhere near as high as it should be given that the individual behind this mass of robocalls was responsible for no less than six separate spoofing campaigns. In fact, it falls far short of the maximum fine the agency could have levied. There is nothing in the law that stops us from doing so. In fact, in the report accompanying the just-passed bipartisan TRACED Act, Congress made abundantly clear that “to combat robocalls, stronger penalties are needed.” Because we fail to do so, I dissent. The Commissioner is, of course, referring to the TRACED Act that was signed into law by President Trump on December 31, 2019. You might remember our reporting on the TRACED Act saying the FCC has to step up their game, according to the new regulations, and prosecute Robocalls, implement Robocall measures, and create reports on those measures. The FCC can also solicit the participation of voice-service providers in tracking back the origins of suspected scammers and is obligated to publish information about any such provider that refuses to cooperate. A Question of Language Commissioner O’Rielly only approved of the NAL after making sure some of the language in the notice was reworded: I have previously taken a slightly different approach from my colleagues when it comes to interpreting the Truth in Caller ID Act’s anti-spoofing provisions. In my opinion, the text specifically requires evidence of subjective intent to cause harm. In other words, a negligence standard does not cut it, when Congress specifically indicated that there must be ‘intent.’ Since it’s very common for numbers to be mistakenly labeled as “fraud” or “scam”, this does conform with the TRACED Act provision designating a “safe harbor” to protect voice providers who’ve been victims of these mistakes. The ACA has also taken it upon itself to gather data regarding the current system and inform the FCC on how to better differentiate between illegal callers and legitimate businesses. It’s also asking the FCC to clearly mention that voice service providers can’t use “reasonable analytics” to block robocalls and must inform businesses when their numbers have been labeled as spam or fraud. Both these provisions are also consistent with the TRACED Act. Still Some Way to Go While the present fine is significant, concerns by Commissioner Rosenworcel as well as those by the ACA show there’s still a long way to go towards creating a clear understanding of the TRACED Act. Furthermore, the FCC’s traceback system must be able to function in providing proof of mislabeled numbers, in order to establish a safe harbor for businesses. As of now, the traceback system is cited as the only one which can offer evidence of such mistakes. If FCC ensures the new system works well, one likely outcome would be an increased willingness for businesses to participate in traceback efforts and contribute to cleaning up the entire call ecosystem.