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.
Ever since the FCC released its draft Declaratory Ruling and Third FNPRM, the docket became highly active with over eighty ex parte comments filed on the “Call Blocking by Default” proposal. Many vehemently objected to core concepts that are undefined, vague, and subjective. For example, what are the legally permissible factors for a voice service provider to consider when determining that a call is “unwanted?” What are the criteria that a service provider’s call-blocking tool must satisfy to be considered “reasonable analytics” that are authorized automatically to block calls? The proposal troubled a wide range of industry groups, including ACA International, American Bankers Association, American Association of Healthcare Administrative Management, American Financial Services Association, Consumer Bankers Association, Credit Union National Association, Free Press, Independent Community Bankers of America, Mortgage Bankers Association, National Association of Federally Insured Credit Unions, National Retail Federation, NTCA – The Rural Broadband Association, The Voice on the Net Coalition, and U.S. Chamber of Commerce Institute for Legal Reform, to name a few. Several ex parte comments proposed alternative call-blocking regimes.
Critical Terms Remain Ambiguous
In light of these concerns, it was somewhat disappointing that the FCC did not take the time to better define its terms before rushing to embrace a form of “Call Blocking by Default” that contains many vague or undefined but critical parameters. For example, the text of the Declaratory Ruling and Third FNPRM, on three occasions, confirms that the FCC is targeting “unwanted calls.” While the FCC acknowledges that this type of call constitutes a broader swath of calls than “illegal calls,” it fails to acknowledge that it is handing voice service providers and callers no guidance as to what that term means or how it is to be applied to block calls.
Another core concept—that carriers may use “reasonable analytics” to identify and block unwanted calls—remains troubling at best. The FCC did add language in the Declaratory Ruling to require that such analytics are to “be applied in a non-discriminatory, competitively neutral manner.” But if a caller does not know that its calls are being blocked and does not know if other similarly situated callers are being blocked as well, there may be little point to adding a nondiscrimination requirement to the use of algorithms that are not available for review or assessment as to their efficacy or reasonableness. This lack of transparency even extends to the most serious of calls for emergency communications, as the Declaratory Ruling states that carriers would be exculpated from liability for blocking these calls as long as they have made “all feasible efforts for those tools to avoid blocking emergency calls.”
Added Clarification on Erroneous Blocking Remedial Measures
Notably, the FCC did act to clarify what it expects a voice service provider to do to remedy erroneous blocking of legitimate business calls. The FCC will require call-blocking programs to publish a point of contact for legitimate callers to report suspected erroneous blocking and to have a mechanism available to resolve those complaints. In the event of a dispute as to whether the blocking was erroneous, a blocked party may seek administrative review by filing a petition for declaratory ruling with the FCC. The FCC encouraged, but did not require, voice service providers to develop a mechanism to notify callers that their calls have been blocked and for caller businesses to share their own call patterns with voice service providers’ analytics to avoid erroneous blocking. Time will tell if these measures are sufficient to protect legitimate outbound calling and ensure that called parties are getting the notifications they expect.
The FCC Seems More Aware of Potential Legal Challenges
One of the biggest criticisms from industry groups to the “Call Blocking by Default” regime has been that the approach significantly departed from FCC precedent and that carriers are by nature supposed to complete legal calls presented to them for delivery. The FCC made several attempts to strengthen its legal authority and rationale in its Declaratory Ruling to address that issue. The text concludes that offering call-blocking services to consumers is a just and reasonable practice, and the FCC cites its 2015 TCPA Omnibus Declaratory Ruling in making that point. Because service providers would be blocking calls based on consumer’s informed choice “not to opt out,” the FCC contends that it is legally authorized to permit consumer-driven call blocking that is, in its estimation, “an enhancement of service, not a discontinuance or impairment of service.”
Specifically, in explaining its reasoning for encouraging call-blocking tools be deployed on an opt-out basis, the FCC cites to comments filed by “[s]everal small and medium size voice service providers,” who stated that it is “unfortunate that customers who are less familiar with and slower to adopt new technologies are missing out.” As an example to rebut industry groups’ biggest concern – erroneous blocking, the FCC discusses AT&T’s current call-blocking program that allows consumers to view lists of blocked calls to prevent wanted calls from being blocked in the future and encourages, but does not require, all providers to offer a similar type of capability. The FCC also adds that because reducing the number of unwanted calls will make consumers more likely to answer their phones, “Call Blocking by Default” “will ultimately increase call completion rates for legitimate callers.”
Two New Proposals in The Third Further Notice of Proposed Rulemaking
The FCC also added two new proposals in its Third FNPRM. The first would be a requirement that service providers implement the Signature-based Handling of Asserted Information Using toKENs (SHAKEN) and the Secure Telephone Identity Revisited (STIR) standards by the end of 2019. This proposal would formalize the FCC’s repeated push that all service providers to deploy the SHAKEN/STIR framework by the end of 2019.
The second is a proposal to create a mechanism to evaluate the effectiveness of service providers’ call blocking solutions. This mechanism would include studies conducted by the Consumer and Government Affairs Bureau, the Wireline Competition Bureau, and Public Safety and Homeland Security Bureau, as well as public reports about service providers’ first-year and second-year performance against effectiveness benchmarks that are to be set by a future Declaratory Ruling.
Implications of New Regime on Voice Service Providers – Issues Still To Be Decided
Voice service providers have indicated that they would be inclined to first implement “Call Blocking by Default” to tackle a subset of illegal calls absent protection from a safe harbor provision, which is still up for debate through the Third FNPRM proceedings. The FCC currently proposes to adopt a safe harbor for call-blocking in specific instances based on use of SHAKEN/STIR. The proposal would shield voice service providers from liability under the rural call completion rules when they have mistakenly blocked calls that fail Caller ID authentication under the SHAKEN/STIR framework or unsigned calls from particular categories of voice services providers, such as those failed to implement the SHAKEN/STIR framework or those known to enable the initiation of illegal robocalls. Whether the safe harbor would extend to all algorithmic call blocking is a subject for comment.
When this item was adopted at the June Open Meeting, Commissioner Geoffrey Starks announced that he would lead actions to make sure that voice service providers will not undermine the new regime’s consumer-protection goal by passing on the cost of implementing call-blocking technologies to consumers. The first of such actions came on June 10, 2019, when Commissioner Starks sent fourteen letters to major voice service providers to solicit details about how they plan to take advantage of the flexibility they are afforded under the “Call Blocking by Default” regime. His letter asked how and when they plan to roll out these new programs and whether they intend to charge consumers for these services. Responses to these inquiry letters are due by July 10, 2019.
As we noted before, the Declaratory Ruling portion of the “Call Blocking by Default” became effective upon release on June 7, 2019. As algorithmic blocking is rolled out more broadly, companies, especially those dialing large volumes of numbers daily, should assess the effects on their operations. The thirty-day comment period for the Third FNPRM portion will begin upon publication in the Federal Register. Interested parties should closely monitor this proceeding and carefully consider whether commenting publicly can improve the outcome.