In the July 10, 2015 FCC Order regarding the TCPA (the “Order”), the FCC didn’t just sharpen the litigation “sword” that consumers can use against telemarketers—it also gave them a shield. The FCC affirmed that “nothing in the Communications Act or our rules or orders prohibits carriers or VoIP providers from implementing call-blocking technology that can help consumers who choose to use such technology to stop unwanted robocalls.” Order at ¶ 152. The FCC expressly rejected the notion that “[t]he current legal framework simply does not allow [phone companies] to decide for the consumer which calls should be allowed to go through and which should be blocked,” (Order at ¶ 153) and found that “[a]s long as the carrier offering its own product or coordinating with another product provider offers adequate disclosures, such as that the technology may inadvertently block wanted calls, consumers have the right to choose the technology.” (Order at ¶ 160.) In essence, the FCC found that although common carriers cannot block calls of their choosing, there is no rule againstconsumers choosing to block calls.
This ruling is not surprising, given the pro-consumer themes struck by the FCC throughout the Order. But it does not come without risks. Although the FCC “strongly encourages” carriers, VoIP providers and third party technology providers to “avoid blocking autodialed or prerecorded calls from public safety entities, including PSAPs, emergency operations centers, or law enforcement agencies,” Order at ¶ 157, it stopped short of requiring such measures. While that may be good news for technology developers—who can focus on creating effective systems without fear of liability for blocking public safety calls—it fails to truly address the balance between a consumer’s interest in blocking certain calls and a public safety entity’s interest in using automated dialing technology to quickly and efficiently notify the public of urgent matters.
The Order also puts a significant focus on the nature of the disclosures and consent for call-blocking technology (see, e.g., Order at ¶ 160), which could create interesting liability issues down the road. It is not difficult to imagine the same creative plaintiffs’ attorneys who first argued the TCPA applied to text messages asserting claims in the future on behalf of consumers against call-blocking services, alleging that the consumers were damaged when they failed to receive an inadvertently blocked call and contending that the disclosures provided at the time of consent were inadequate. In doing so, they would be turning a provision intended to shield consumers from telemarketers into yet another class action sword.
But regardless of its possible flaws, the call-blocking portion of the Order should be a concern for telemarketers, as it represents one more limitation on access to consumers. Telemarketers now must contend not only with the ever-present risk of TCPA liability, but also with decreased call success rates as call-blocking becomes more popular. So far, call-blocking technology is strictly voluntary, but the FCC has suggested that mandatory call-blocking could be coming in the future: “While we do not at this time require carriers to offer consumers call-blocking tools, we will continue to watch the development of such tools.” (Order at ¶ 163.)