Safe Harbors and Erroneous Blocking Redress Measures Adopted by the FCC; Additional Rulemaking Proposed

As we previewed recently, the FCC adopted a set of rule amendments through a Third Report and Order for its “call blocking by default” framework on July 16, 2020. These rules focus on two safe harbors potentially shielding voice service providers from liability when they block calls that fail the SHAKEN/STIR authentication framework or that originate from “bad-actor upstream voice service providers.” These rules also generally provide for protection of “critical calls,” and condition safe harbors on having a no-cost, streamlined solution designed to remedy blocking errors, without defining what constitutes an “error.”

The rules as adopted had few substantive changes from the draft version that was released prior to the FCC’s July 2020 Open Meeting. First, the FCC added a clarification that the safe harbor that allows voice service providers to block calls based on “bad-actor upstream voice service providers” is not intended to “affect[] the private contractual rights a downstream provider has to block or refuse to accept calls pursuant to its agreements with wholesale customers.” This clarification suggests that the FCC does not intend this safe harbor to be the only permissible provider-based blocking under the FCC’s rules. For example, the FCC has long recognized that consumer consent or opt-in could be a valid basis for call blocking.

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The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor

In a Public Notice issued July 28, 2020, the FCC confirmed that the TCPA’s safe harbor for calls or text messages made for “emergency purposes” applies to calls and text messages made by or on behalf of health care entities to communicate with individuals who have tested positive for COVID-19 to provide them with information regarding donating their plasma after recovery. As a result, in the FCC’s view, such calls or text messages during the ongoing pandemic do not require prior express consent to be lawful. Continue reading   »

Regulatory Updates: FCC to Vote on “Robocall” Measures to Mitigate Erroneous Blocking and to Advance Reassigned Numbers Database Rules to the Next Step

The FCC recently reported a decrease of approximately 60% of consumer robocall complaints and a drop of approximately 30% in volume of “unwanted robocalls” that were placed in the first half of 2020 as compared to the first half of 2019. Considering that the FCC adopted the first-of-its-kind “call blocking by default” framework in June 2019, some might wonder: Does this mean the FCC’s “call blocking by default” framework has been successful?

While the FCC cited to voice service providers reporting that they have so far only discovered less than 1% of – or as few as 0.2% of – blocked calls to be false positives, the seemingly low percentage still means that millions of lawful and wanted calls have been erroneously blocked. For example, Hiya reported that it has blocked nearly 800 million calls in 2019, which could mean that 0.2% of which – 1.6 million calls – had been blocked in error in that year. Likewise, Nomorobo blocked over 512 million robocalls in 2019; its blocking platform may have affected the delivery of 1.024 million lawful calls in that year.

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Legislation Looking Likely on a Number of TCPA “Hot-Button” Issues

Senate Bill 151, now called “the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (the “TRACED Act”), has been reconciled with the House of Representatives’ bipartisan bill House Bill 3375 and was passed in the House on December 4, 2019. This revised amendment has been returned to the Senate for a final vote and is expected to become final legislation “if not this week, then next week,” according to the bill’s sponsor, Representative John Thune. Thus, the prospects for passage of TCPA legislation currently look quite positive.

As drafted, the legislation will kick off a number of activities by the FCC, and may, as a practical matter, require the agency to take prompt actions on long-awaited rulings on critical statutory definitions. We highlight below some of the most notable revisions in the TRACED Act made since July 2019.

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Comment Cycle Begins for the FCC’s Third Further Notice of Proposed Rulemaking on “Call Blocking by Default” Regime And SHAKEN/STIR Implementation Deadline

On June 24, 2019, the FCC’s adopted Declaratory Ruling and Third Further Notice of Proposed Rulemaking (“Third FNPRM”) was published in the Federal Register, triggering the commenting period deadlines. We previously discussed in detail the various components of the Third FNPRM here and here. Comments on this Third FNPRM are due by Wednesday, July 24, 2019, and reply comments are due by Friday, August 23, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.

TCPA Legislation on the Horizon?

While the FCC has a record open to adopt guidance and a new definition for what it considers as an “automatic telephone dialing system” (ATDS) and related TCPA matters, there appears to be growing consensus on “Robocall” legislation in the two houses of Congress that may be moving TCPA legislation closer to reality. On the heels of the Senate passing Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”)Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”), the House of Representatives yesterday introduced a new bipartisan bill – House Bill 3375 – that would bolster the prospects that Congress may be able to pass legislation this year.

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The Next Round of the FCC’s “Call Blocking by Default” Approach Kicks off with a Further Notice of Proposed Rulemaking

By directing voice service providers to deal with “unwanted calls” as part of its anti-robocall policies, the FCC seems to have moved well beyond addressing “illegal and spoofed robocalls.” The text of the FCC’s new “Call Blocking by Default” approach was released late on June 7, 2019, which, as we previously predicted, contains several changes to the draft version of the Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM). Depending upon your point of view, the Third FNPRM contains either a few hopeful signs that the FCC understands and is willing to address the practical effects of its highly consequential blocking edict, or troubling confirmation that it has little idea of what it has unleashed on businesses and consumers. Continue reading   »

Do B2C Telephone Communications Now Need to Win the Popularity Contest to Not Be Preemptively Blocked?

Businesses may dial large volumes of numbers daily for a variety of legitimate purposes. These calls now appear to have become swept up and conflated with illegal robocalls, with a number of undesirable consequences. Certainly policy makers at the FCC, in reacting to understandable concerns about fraudulent and illegal calling, have been introducing more and more opportunities for voice service and app providers to apply non-transparent, subjective standards to block calls, and further muddy the water for business callers. Continue reading   »

FCC’s Second Further Notice of Proposed Rulemaking on Reassigned Numbers Published in Federal Register; Comment Clock Begins

On March 22, 2018, the FCC adopted a Second Further Notice of Proposed Rulemaking (FNPRM) on reassigned numbers. On April 23, 2018, the FNPRM was published in the Federal Register, triggering the commenting period deadlines. Comments on the FNPRM must be submitted by June 7, and reply comments must be submitted by July 9, 2018. Continue reading   »

FCC Releases Draft Second Further Notice of Proposed Rulemaking on Reassigned Numbers Database

In anticipation of its March 22 Public Meeting, the FCC on March 1 released a draft of a Second Further Notice of Proposed Rulemaking addressing comments received on its earlier Notice of Inquiry on proposals for a database to identify reassigned numbers (FNPRM). The FNPRM was released alongside the FCC’s Public Meeting Agenda. The draft FNPRM primarily seeks comment on: (1) the specific information that callers would need from any reassigned number database; and (2) the best way to make that information available to callers. The draft will be considered for adoption by the full Commission at the meeting. Continue reading   »