As we reported extensively back in June, the FCC recently adopted a rule allowing carriers to opt consumers using their networks into call blocking tools by default. This means that carriers can use “reasonable analytics” to choose which calls do and do not connect with consumers based upon their analysis of whether the call is likely to be wanted or unwanted.
Although the FCC’s ruling enabling default call blocking suggested that a redress mechanism with the carriers would be created to allow callers to dispute that their calls were legitimate and wanted, there is not yet a clear path to development of such a mechanism (although the Stopping Bad Robocalls Act—if passed—would require the creation of such redress channels.) Accordingly, businesses looking to assure that their calls will yet connect when the carriers begin deploying default call blocking have begun commenting to the FCC in the hopes of having their calls deemed “critical” and unblockable by the carriers in the first place.
The FCC opened the door to these comments last month when it issued a Third Notice of Proposed Rulemaking regarding a safeharbor to be provided to carriers for blocking potentially wanted calls. To take advantage of that safeharbor the carriers would have to implement technology to avoid blocking so-called “critical calls”—and the FCC sought public assistance defining what calls merit the critical designation.
In a joint-trade filing submitted by organizations representing banks, finance companies, retailers, credit unions and utilities one recent comment sought to clarify that a wide range of commercial calls should be deemed “critical” and unblockable, including: “fraud alerts, data breach notifications, remediation messages, electric utility outage notifications, product safety recall notices, healthcare reminders and prescription notices, and mortgage servicing calls required by Federal or State law.” The comment can be found here: 7-24-19 Joint Trades Letter to FCC on Third Further Notice of Proposed Rulemaking_final
In seeking an expansion of the critical calls list, the comment largely tracks the analysis used to afford TCPA exemptions to certain similar categories of calls in its 2015 Omnibus ruling. Notably—and although a major creditor trade group is signed on to the comment—the comment does NOT request that the FCC deem debt collection calls “critical” except with respect to mortgage servicing calls that are required by law.
The comment also asks the Commission to require carriers to delay rolling out default call blocking until after the SHAKEN/STIR authentication protocol has been fully implemented. This request seems to make sense since the FCC’s rules allow the carriers to block unauthenticated calls—but the authentication technology has not yet been completed, leading some to suggest that the call blocking rules put the cart before the horse.
Finally, the comment seems to ask the FCC to reconsider portions of its ruling enabling default call blocking by suggesting that carriers should only be permitted to block unauthenticated calls or those that are made illegally. As mentioned above, the current rule authorizes carriers to block calls that “reasonable analytics” suggest may be unwanted—even if the call is perfectly legal. The joint-trade comment, however, urges the Commission to determine that only illegal calls may be blocked and also encourages the FCC to adopt a rule preventing carriers from labeling servicing calls as belonging to a “debt collector” for fear that consumers will not receive important messages regarding their account status.
For those still interesting on commenting on what calls should be deemed “critical”– the Squire Patton Boggs team is standing by to assist. Reply comments due by August 23, 2019. Feel free to reach out to discuss.