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.
While no one advocates the use of systems or platforms that perpetuate fraudulent or illegal calling, many commenters advocated throughout the FCC’s robocall proceedings that more attention must be paid to ensuring that erroneous blocking of wanted and lawful calls is readily discoverable and susceptible to quick remedy. Acknowledging this problem, the FCC has scheduled for consideration at its July 2020 Open Commission Meeting a draft Third Report and Order that, if adopted, would protect certain categories of “critical calls” and mandate a no-cost, streamlined solution to quickly remedy blocking errors, among other things. The FCC also has announced the compliance dates for service provider record-keeping to support the to-be-launched Reassigned Numbers Database as a tool to help callers avoid making misdirected calls after a telephone number has been reassigned.
Service Providers Blocking Calls Are Expected to Complete “Critical Calls,” to Have a Public Single Point of Contact, and to Promptly Resolve Blocking Disputes Free of Charge
As a preliminary matter, the FCC’s draft order states that its “call blocking by default” framework can “mitigate the risk of erroneous blocking” by requiring blocking to be done “under a program using reasonable analytics to identify and prevent the blocking of wanted calls.” Nevertheless, in light of “strong support in the record for transparency and redress mechanisms” and the mandate under the recently enacted TRACED Act to establish these mechanisms, the draft order proposes to adopt some protections to address circumstances when wanted calls are blocked by “reasonable analytics.”
The FCC declines at this time to create any “white list” of “do not block” numbers. The Commission instead reiterates that “all voice service providers must make all reasonable efforts to ensure that calls from PSAPs [Public Safety Answer Points] and government outbound emergency numbers are not blocked.” The FCC also proposes a rebuttable presumption that “[c]alls to PSAPs via 911” “should never be blocked unless the voice service provider knows without a doubt that the calls are unlawful,” because “911 call centers themselves are best equipped to determine how to handle the calls they receive.”
The FCC appears to interpret “critical calls” very narrowly; the draft order does not recognize many types of important calls that commenters have advocated for protection against “call blocking by default.” Excluded from the definition of “critical calls” are, for example, calls on behalf of the federal government for public health benefits, fraud alerts, utility outage notifications, product recall notices, healthcare-related alerts, and school notifications, even as some categories of these calls enjoy specific exemptions from TCPA prior consent requirements under the statute or FCC rules.
The FCC draft proposes to require voice service providers that block calls to “designate a single point of contact” responsible for remedying “blocking errors at no charge to callers or other voice service providers.” The proposal would require that the point of contact’s information be “clearly and conspicuously” published on the blocking providers’ “public-facing websites.” However, the draft order suggests that the FCC does not intend to require voice service providers to play a feedback code or tone that would notify the callers when calls are blocked.
Lastly, the FCC expects the blocking providers to “investigate and resolve these blocking disputes in a reasonable amount of time” – where reasonableness is measured “consistent with industry best practice” and “may vary depending on the specific circumstances.” In particular, “when a caller makes a credible claim of erroneous blocking and the voice service provider determines that the calls should not have been blocked, a voice service provider must promptly cease blocking calls from that number unless circumstances change.”
In articulating its thinking, the FCC believes that the appropriate level of protection afforded to the completion of lawful calls would reflect a consumer’s “choice to accept some level of risk of erroneous blocking in exchange for additional protections against unwanted calls.” The FCC also proposes to clarify that consumers always have the right, “either via opt in or opt out consent, to have their terminating voice service provider block categories of calls that may include legal calls.” In other words, the draft order would permit voice service providers to rely on a customer’s selection of specific blocking categories to block lawful calls to gain the benefit of a safe harbor.
Two Safe Harbors May Become Available for Providers
While the draft order shows some progress toward redress for erroneous blocking, another important aspect of the draft order is the FCC’s proposed determination on two situations under which voice service providers blocking calls could be protected from liability under the call-completion rules.
The first builds upon the FCC’s original proposal that the safe harbor would only be for calls failing Caller ID authentication under the FCC’s STIR/SHAKEN framework. The draft order reframes the safe harbor in broader language, which would qualify terminating voice service providers for protection when they block calls based on reasonable analytics programs that incorporate caller ID authentication information. The FCC explains that “only the STIR/SHAKEN caller ID authentication framework satisfies this requirement” at this time, but it also leaves open the possibility that other authentication methods that would satisfy requirements under the TRACED Act could qualify for this safe harbor in the future, as the industry continues to develop caller ID authentication technologies.
The second is a more targeted safe harbor that intends to deter “bad-actor upstream voice service providers” while incentivizing providers’ cooperation in that effort. Under this safe harbor, the FCC would encourage “provider-based blocking” so that providers would be shielded from liability when they “block calls from an upstream voice service provider that, when notified that it is carrying bad traffic from the Commission, fails to effectively mitigate . . . or . . . to prevent . . . customers from using its network to originate illegal calls.”
Voice Service Providers Are Expected to Comply with Record-Keeping and Number Aging Requirements by July 27, 2020 to Prepare for Reassigned Numbers Database Reporting
A July 2, 2020 Public Notice announcing the compliance dates for the Reassigned Numbers Database marks another milestone in the FCC’s effort to help callers reliably recognize telephone numbers that have been disconnected, recycled, and reassigned. In addition to helping consumers receive fewer calls not intended for them, this effort can help callers availing themselves of the database the ability to avoid making calls or sending text messages to the incorrect person.
With the exception of small business voice service providers (those with fewer than 25 employees), all voice service providers “must maintain records of the most recent date each number was permanently disconnected and must age telephone numbers for at least 45 days after disconnection and before reassignment.” Small providers can benefit from a delayed compliance date of January 27, 2021.
The FCC is slated to vote on the draft order on July 16, 2020. Some aspects of the draft order may change when the final version is released following the Commission’s Open Meeting. Come back to read more reporting from the Faegre Drinker TCPA team once the final order is released.
The second half of the draft order – the Fourth Further Notice of Proposed Rulemaking – seeks comments on further details necessary to meet the implementation timelines that the TRACED Act has set for the FCC. Interested parties should monitor this proceeding and carefully consider whether commenting publicly might improve the outcome.
The FCC has also indicated that it will set the compliance date for reporting required information to the Reassigned Numbers Database as soon as the database is established. Voice service providers that work diligently to prepare information while fulfilling its record-keeping requirement at this time may find themselves ahead of the curve once that compliance date is announced.