FCC Takes Further Action to Stop Unlawful Robocalls
On June 7, 2019, the Federal Communications Commission (FCC) released a Declaratory Ruling and Third Further Notice of Proposed Rulemaking (Order) to resolve uncertainty about the call-blocking services that voice service providers1 (Providers) may offer. The Order, which was effective upon release, clarified that Providers may immediately start offering call-blocking services by default, while giving consumers the choice to opt-out. In addition, the FCC sought comment on proposals to (1) create a safe harbor for call-blocking programs, and (2) require "major" Providers to implement an industry-developed call authentication program if Providers fail to implement such program voluntarily by the end of 2019.2 Comments on the proposed rulemaking are due July 24, 2019, and reply comments are due August 23, 2019.
Scope of Declaratory Ruling
Specifically, the FCC found that opt-out call blocking programs are generally just and reasonable practices consistent with the Communications Act of 1934, as amended,3 and should be offered to both existing and new subscribers. Below are the requirements the FCC identified for a reasonable opt-out program.
- Providers must offer sufficient information so that consumers can make an informed choice.
- Providers may offer opt-out programs "based on any reasonable analytics designed to identify unwanted calls." The analytics must be applied in a non-discriminatory, competitively neutral manner.
- Providers must make all feasible efforts for call-blocking tools to avoid blocking emergency calls.
- Providers may not use call-blocking programs to avoid the effect of FCC rural call completion rules.
- Reasonable call-blocking programs would include a point of contact for legitimate callers to report what they believe to be erroneous blocking and a mechanism for such complaints to be resolved. Callers who believe their calls were unfairly blocked also may file a petition to request FCC review of the blocking program.
The FCC noted that it expects Providers that choose to offer an opt-out service to do so at no additional charge to consumers (although the FCC did not mandate that such services be free).
The Order turned next to the permissibility of white-list programs, which allow consumers to specify the telephone numbers from which they wish to receive calls. The FCC clarified that Providers may offer an opt-in white-list program using the consumer's list of contacts. Such programs must obtain informed opt-in consent from consumers, and Providers must clearly disclose to consumers the risks of blocking wanted calls and the extent of the information consumers will disclose to the Provider by participating in the program.
Notice of Proposed Rulemaking
The FCC proposed a "safe harbor" for Providers that offer call-blocking programs based on whether a call has been properly authenticated under the SHAKEN/STIR framework or may potentially be spoofed. The FCC described SHAKEN/STIR as an "industry-developed system to authenticate Caller ID and address unlawful spoofing by confirming that a call actually comes from the number indicated in the Caller ID, or at least that the call entered the US network through a particular voice service provider or gateway."
The FCC sought comment on the following key issues, among others, regarding the safe harbor:
- Are there other instances (besides spoofing) where a call would fail authentication? How should the FCC address false positives? Should the safe harbor be more or less expansive?
- Should the safe harbor include blocking unsigned calls from particular categories of Providers? Should the safe harbor target those Providers that are most likely to facilitate unlawful robocallers?
- How can the FCC ensure that any safe harbor does not impose undue costs on eligible telecommunications carriers participating in the FCC's high-cost program?
- Should Providers be required to provide a mechanism for identifying and remedying blocking of unwanted calls?
- What steps should the FCC take to encourage the use of SHAKEN/STIR analytics?
Protections for Critical Calls
The FCC proposed to require Providers that offer call-blocking to maintain a "Critical Calls List" of numbers it may not block, such as outbound numbers of 911 call centers and other government emergency outbound numbers. The FCC sought comment on whether the list should be limited to genuine emergency calls only and such issues as what numbers should be required on a Critical Calls List; whether the proposed List captures the most important numbers to avoid blocking; how to ensure the List is protected from abuse; and ways to protect callers from erroneous blocking.
Mandating Caller ID Authentication
If major Providers fail to implement the SHAKEN/STIR Caller ID authentication framework by the end of 2019, the FCC proposed mandating implementation of the framework. The FCC sought comment on this proposal, including on how best to define "major voice service providers"; how to evaluate compliance with the deadline; whether to include all Providers; how much implementation time to give Providers; what role the FCC should play in SHAKEN/STIR governance; and the costs and benefits of the SHAKEN/STIR framework.
The FCC also directed the Consumer and Government Affairs Bureau (CGB), in consultation with the Wireline Competition Bureau and the Public Safety and Homeland Security Bureau, to prepare two reports, due 12 and 24 months after Federal Register publication of the Order, that assess the impact of previous FCC rule changes on call blocking and the state of deployment of the SHAKEN/STIR framework. The FCC delegated to the CGB, in consultation with the other named Bureaus, the authority to collect additional information and data from Providers necessary to complete the reports.
© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.
47 U.S.C. §§ 201(b) (permitting "just and reasonable" and forbidding "unjust and unreasonable" charges, practices, classifications, and regulations), 214(a) (requiring FCC approval of impairments of service by telecommunications carriers).