DEEPER DIVE: FCC Affords Legal Foundation For Aggressive Blocking Of Unwanted Robocalls

As earlier reported, the Federal Communications Commission (FCC) today approved a Declaratory Ruling affirming that “voice service providers may, as the default, block unwanted calls based on reasonable call analytics, as long as their customers are informed and have the power to opt out of the blocking.” In addition, the ruling clarifies that “providers may offer their customers the choice to opt-in to tools that block calls from any number that does not appear on a customer’s contact list or other ‘white lists.’”

All five Commissioners voted to approve the item, which also includes a Notice of Proposed Rulemaking (NPRM), with two modest dissents to components of the ruling. Commissioner Michael O’Rielly objected to the delegation to the agency’s Consumer and Governmental Affairs Bureau of authority to collect and report on carrier data concerning robocall blocking. The new language added to the draft Declaratory Ruling was apparently at the behest of Commissioner Geoffrey Starks. We will not know the scope of this add-on until the revised text of the combined decision is released.

Commissioner Jessica Rosenworcel dissented to the extent that the Commission did not require blocking to be provided for free by the carriers – this capability should be free to consumers “full stop.” She reiterated this position in a post-meeting press conference. Other Commissioners commented that no-charge-to-the consumer blocking was an “expectation,” although not mandated by the decision.

Commissioner O’Rielly also expressed concern about the blocking of beneficial calls (i.e., those that might be made by legitimate businesses). He said that there should be swift redress for erroneously blocked calls. His concern was apparently sufficiently addressed to garner his support for the ruling by the insertion of a process whereby such callers could seek redress through complaints about blocked calls that then would be resolved. Again, we must await access to the actual text of the decision to understand fully how that will work.

Also relevant to the issue of blocking wanted calls is the NPRM request for comments on a Critical Calls List. These would be calls that would not be blocked, so long as authenticated. As previously noted, the FCC seeks input on what types of calls should be on that list beyond emergency and certain other limited call types. The comment deadlines and the chance to provide your input will be established when the ruling is published in the Federal Register.

As originally proposed, the NPRM also would address the required implementation of the SHAKEN/STIR caller authentication framework if the carriers do not voluntarily do so by the end of 2019. Further, the FCC seeks comment on the potential creation of a “safe harbor” for carriers that block “maliciously spoofed calls so that caller ID cannot be authenticated and that block calls that are ‘unsigned.’”

The Declaratory Ruling will take effect upon posting of the item on the FCC’s website. In a post-meeting press conference Patrick Webre, Chief of the Consumer and Governmental Affairs Bureau, did not expect a great delay since “all five Commissioners voted for the item.” Stay tuned.

And what of the other TCPA matters, specifically the proceeding to address the issues raised and remanded in the ACA International decision and the thirty-one pending TCPA-related petitions? The only public comment on that score came from Commissioner O’Rielly in the post-meeting presser. He stated it was “imperative” to decide those issues, but the Chairman determines the timing of items. He added, as in his recent speech at the ACA International annual conference, that if the remand issues were not to be addressed, then the pending petitions should be resolved. But no timetable for either at this point.

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