T-Mobile is in trouble again. Earlier this year the national wireless carrier was accused of refusing to provide direct connections with carriers as part of claims it was involved in access arbitrage schemes with intermediate carriers. That issue has yet to be settled. Now, the controversial company has agreed to pay $40 million to the U.S. Treasury as part of a Consent Decree with the FCC for inserting false ring tones in calls to rural customers that originated over its network. It should have been a lot more!

According to the Commission, carriers that originate calls for their customers are prohibited from “convey[ing] a ringing indication to the calling party until the terminating provider has signaled that the called party is being alerted to an incoming call, such as by ringing"  

[False audible ringing] occurs when an originating or intermediate provider prematurely triggers audible ring tones to the caller before the call setup request has actually reached the terminating rural provider. That is, the calling party believes the phone is ringing at the called party’s premises when it is not. An originating or intermediate provider may do this to mask the silence that the caller would otherwise hear during excessive call setup time. As a result, the caller may often hang up, thinking nobody is available to receive the call. False audible ringing can also make it appear to the caller that the terminating rural provider is responsible for the call failure, instead of the originating or intermediate provider. (T-Mobile Consent Decree, released April 16, 2016, at p. 4).

The complaints against T-Mobile began in the summer of 2016 when three rural ILECs claimed there were more than 40 incidents in which T-Mobile customers were unable to complete calls to consumers served by these providers. The complaints stated that the calling party heard ring tones on call attempts that failed to reach the rural customers.

The FCC's Enforcement Bureau (Bureau) served these complaints on T-Mobile and requested the wireless provider to investigate and "fix" the problem. T-Mobile subsequently reported to the Bureau that it had handed the call off to an intermediate provider for delivery, and that any reported problems had been resolved.

However, additional informal complaints were made by several T-Mobile customers claiming difficulty reaching rural wireline customers. Finally, in December after the FCC initiated a formal investigation into the company's rural call practices, T-Mobile finally admitted to the following actions regarding ring tones:

T-Mobile reported that in 2007 it began using servers that included a “Local Ring Back Tone” (LRBT) for calls from certain customers that took more than a certain amount of time to complete. The Company further reported that in 2013, as it migrated to different servers, it began using the LRBT only for the out-of-network calls from its customers that were routed via Session Initiation Protocol (SIP) trunks and that took more than a certain amount of time to complete, and that it continued its practice of using the LRBT on such calls (and expanded the LRBT to cover such calls on additional SIP routes) after the FCC rule prohibiting the practice went into effect in January 2014. Because T-Mobile applied this practice to out-of-network calls from its customers on SIP routes that took more than a certain amount of time on a nationwide basis and without regard to time of day, the LRBT was likely injected into hundreds of millions of calls each year. (Id. At p. 5).

In addition to the $40 million payment, T-Mobile agreed that within 90 days of the effective date of the Consent Decree, it will develop and implement a compliance plan to fix its false ring tone problem.

However, FCC Commissioner Mignon Clyburn correctly believes the company is getting off way to easily. As she wrote after the Consent Decree was released:

How many times was a loved one calling to check on the wellbeing of an elderly relative, only to have the phone ring and ring with no answer? How many times did a consumer try calling his or her doctor for an urgent refill of an important prescription, only to think that nobody was picking up on the other end of the call? Childcare providers, employers, local businesses, old friends—what critical information was missed?

How did the Commission address this situation? With a severely mismatched consent decree, negotiated by the Chairman’s office. The $40 million civil penalty, which will be paid to the U.S. Treasury, is dwarfed by larger, unpaid fines recently proposed against individual robocallers—and the volume of potential violations here outpaces any robocalling action the Commission has taken. And the compliance plan does not contain any concessions that would explain such a massive discount.

Perhaps most importantly, there is absolutely nothing in this consent decree to compensate consumers. Prior consent decrees have included direct-to-consumer benefits, such as refunds or discounts, or notifications to customers who have been impacted. Despite demonstrating a clear and tangible consumer harm, in this consent decree, consumers are treated as a mere afterthought.  

After eight years at the FCC, Commissioner Clyburn recently announced she will be leaving the Commission before its next meeting on May 10^th. Her dedication to the impact FCC decisions have on ordinary consumers in an FCC filled with folks who appear more concerned with the wellbeing of large companies will be hard to replace. She will be sorely missed.