As anyone familiar with the TCPA well knows, not all “robocalls” are treated equal—some are allowed, some are not, some are restricted to varying degrees and some are stopped before the phone even rings (i.e., they are blocked by carriers/call providers). Under the Trump administration, the FCC is considering implementing new rules that may allow for more robocalls to reach consumers to the extent that otherwise permissible robocalls are being erroneously blocked or placed on “Do-Not-Originate” (DNO) lists by carriers/providers. But in a recent comment, the Federal Trade Commission (FTC) has suggested that the risk is not significant under present rules and, thus, that significant rule changes to prevent erroneously blocked calls are not necessary.

As we previously reported, the FCC issued a Report and Order on Nov. 17, 2017, that approved new rules allowing phone companies to block certain robocalls originating from certain types of numbers. The FCC authorized, in essence, two categories of provider-based call blocking: 1) when the subscriber to a particular telephone number requests that telecommunications providers block calls originating from that number (i.e., the consumer makes a DNO request); and 2) when the originating number is invalid, unallocated or unassigned. However, the FCC also “emphasize[d] that safeguards must be put in place to prevent numbers used for outbound calls from being wrongly added to [a] DNO list, whether from hacking, honest mistakes, or some other cause, especially for calls made to emergency services” and asked for input from stakeholders about what to do in such situations.

On Jan. 23, 2018, the FTC’s staff issued a comment in response to the FCC’s inquiry. Lending its support for the FCC’s efforts, the FTC encouraged providers of call-blocking services to consider engaging in practices that could reduce the potential for blocking wanted calls, such as communicating clearly to subscribers the types of calls that are being blocked, using plain and specific terms to label calls, and providing designated points of contact to handle questions about calls blocked in error. The FTC did not, however, find any need to implement “a formal challenge mechanism [to be used by robocallers] for [disputing] errors resulting from provider-based call blocking” as the FCC had suggested might be needed, noting that the FCC’s Report and Order was limited in scope and that “it appears unlikely that there will be a significant risk of erroneous blocking arising from [call] providers taking advantage of the authority granted by the Report and Order.” 

Why it matters: While illegal robocalls have been steadily on the rise and the FCC’s recent order permits widespread robocall blocking, both the FCC and the FTC have also arguably recognized that some robocalls are necessary and should not be blocked. At the same time, how to prevent erroneous call blocking and to what extent erroneous call blocking poses a significant threat to legitimate robocallers—for example, schools that need to transmit weather-related closures—remains to be seen. Interestingly, the FTC noted in a footnote to its comment that there was no empirical data supporting its conclusions as to the low risk of erroneous call blocking—at least, not yet.