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.

Second, the FCC declined to adopt a commenter’s proposal that the FCC should “implement standards and thresholds by which calls are blocked to help ensure that the use of such analytics does not adversely impact consumers,” citing concerns that “such standardization could present a roadmap to bad actors seeking to circumvent blocking.” Rather, the agency suggested that it is the responsibility of both callers and voice service providers to work together with their blocking and analytics partners to ensure accurate identification of calls, something that may be difficult to achieve if the caller has no knowledge that its calls are being blocked in the first instance.

Third, the FCC made several clarifications about the redress for blocking requirement. Specifically, voice service providers that use third-party blocking services “may direct callers to a point of contact at the third party,” although the voice service provider bears “the ultimate responsibility to ensure appropriate resolution of disputes” and may “lose the protection of the safe harbor” in the event that “the blocking service fail[s] to appropriately resolve complaints.” In addition to providing a traditional method such as phone number or email address, the “point of contact” can be designated in the form of “a web portal, chat bot, [] other electronic means,” or an industry-led registry available for providers to use to resolve larger-scale call blocking disputes.

Lastly, the FCC makes it explicit that compliance with the streamlined redress requirements would be “a condition of obtaining the protections of the safe harbors” established in the new rules, consistent with the mandate of the TRACED Act.

The FCC also put forward several new proposals in a Fourth Notice of Proposed Rulemaking. In addition to seeking further details necessary to meet the implementation timelines that the TRACED Act has set for the FCC, the FCC proposes to impose several affirmative obligations on voice service providers. These include “requiring voice service providers to: (1) respond to traceback requests . . . ; (2) mitigate bad traffic when notified of that traffic by the Commission; and (3) implement effective measures to prevent new and renewing customers from using its network to originate illegal calls.”

When finalizing the Fourth Notice of Proposed Rulemaking, the FCC also adds two new proposals that might further expand the scope of safe harbor protection and “to adopt more extensive redress requirements.” As contemplated, the expanded safe harbor would be broad enough to “cover network-based blocking” without customers opting in or out, as long as the blocking is “based on reasonable analytics that incorporate caller ID authentication information” and “is specifically designed to block calls that are highly likely to be illegal and is managed with sufficient human oversight and network monitoring.” The FCC also plans to assess the following blocking details: whether it would be beneficial to define what constitutes a “reasonable amount of time” in which blocking providers are required to investigate and resolve blocking disputes; whether it is feasible to provide immediate notification to callers when calls are blocked; and whether the FCC should set separate call labeling requirements.

The Third Report and Order will be published in the Federal Register in the upcoming days. Any interested parties that wish to petition the FCC for reconsideration of any aspect of the rule amendments will have thirty (30) days following the publication to file a petition before the rule amendments will become effective.

The Fourth Further Notice of Proposed Rulemaking was published in the Federal Register on July 31, 2020. The deadline to file any comments to the proposals listed in the Fourth Further Notice of Proposed Rulemaking is Monday, August 31, 2020, followed by the deadline to file reply comments on Tuesday, September 29, 2020. Faegre Drinker’s TCPA team will continue to monitor this docket and related developments as they become available.