FCC Permits Limited Blocking to Curb Unlawful Robocalls; Challenge Process, Effectiveness Teed Up for Further Evaluation
At the November Open Meeting of the Federal Communications Commission (“Commission” or “FCC”), Commissioners approved a Report and Order (“Order”) and Further Notice of Proposed Rulemaking (“FNPRM”) that targets a high-priority issue for Chairman Pai – curbing illegal telemarketing and other calls. Acting with unusual speed (at least, by the standards of past Commissions), the Order implements a number of proposals made in March 2017 (for more see our earlier post). With the Order, the FCC adopts rules that enable voice service providers to block calls from invalid, unallocated, and unassigned numbers before they ever reach a consumer’s phone, while the FNPRM seeks input on ways to make sure that blocking does not impact lawful calling practices. FNPRM comments are due by January 23, 2018 and reply comments by February 22, 2018.
The actions today are limited in scope – principally targeting “spoofing” practices that use obviously invalid numbers as the purported originating number. Although the FCC recognizes that spoofing itself is permissible and valid in many instances (for example, doctors making calls from their mobile phones but sharing their office number instead), the Order targets three areas where the purported caller ID is clearly invalid. This marks the first time that the Commission has authorized call blocking in any manner, and the Order is understandably cautious, despite the broader claims made in non-telecom venues. The Order permits blocking, but does not require it. Moreover, the Order repeatedly reminds carriers that they are responsible for instances where their blocking practices are too broad or impermissibly block lawful calls. Given the generally conservative nature of common carriers, this warning is likely to limit the instances that actual blocking that is used, at least initially.
What Calls Can be Blocked?
In the Order, the Commission defines a specific set of circumstances within which a provider may preemptively block a call that the FCC has determined are “likely to be unlawful.” The specific circumstances for allowable call blocking outlined in the Order are as follows:
- Blocking at the Request of the Originating Number Subscriber. The FCC codifies a clarification made via public notice in 2016 which states providers may block calls when requested by the subscriber to which the originating number is assigned (i.e., a Do-Not-Originate (“DNO”) request). The FCC previously decided that providers are allowed to block a call from a number where the subscriber is asking that it be blocked to prevent a robocaller from making calls pretending to originate from that number. For the blocking to be valid, the number must be used for inbound calls only and the subscriber must consent to the blocking. The FCC also encourages providers to work together to share information about DNO requests to enable the system to work more effectively.
- Calls that Purport to Originate from Unassigned Numbers. Providers are now allowed to initiate blocking of a call that appears to originate from a number that the carrier knows is unassigned. The Commission explains that the origination of a call from a number that is unassigned is a strong signal that the calling party is spoofing the caller ID, likely with the intent to defraud and harm a customer. Specifically, the following three categories of unassigned numbers can reasonably be blocked by providers:
- numbers that are invalid under the North American Numbering Plan (“NANP”) such as those that use an unassigned area code, an abbreviated dialing code, do not have the required amount of digits, or that contain a single repeated digit (other than 888-888-8888, which is a valid number);
- numbers that have been verified as not allocated to an provider by the NANP Administrator (“NANPA”) or polling administrator (“PA”); and
- numbers that the NANPA or PA allocated to a provider but are not currently in use (the blocking provider must be the entity to which the number has been allocated for blocking to be allowable). Thus, in effect, the “allocated but unassigned” category is likely to be rarely used to block calls.
Critically, although the FCC authorizes carriers to block certain calls, it doesn’t require them to do so, and it leaves open some risks that may discourage carriers from blocking calls. Notably, the Commission does not create a safe harbor protection for carriers, meaning that errors made in blocking calls are potentially actionable. Moreover, the Commission repeatedly reminded carriers that blocking could subject the carrier to liability if the blocked call falls outside the categories defined above. Further, the FCC warned against blocking of any calls to 911 or other emergency numbers.
In addition, internationally originated calls are subject to potential blocking. The Order notes that in many instances an internationally originated call may display a NANP number – such as in VoIP situations or in cases where a call center is involved. These calls are potentially subject to the blocking practices. Callers originating such calls should take care to ensure that proper caller ID is transmitted in practice by its originating carrier(s).
Finally, the Order “encourages” providers to adopt an easy, quick process by which a caller whose number is blocked erroneously may contact the provider and resolve the problem. This concern, however, feeds the Further Notice in the proceeding.
The Commission – and in particular, Commissioner O’Rielly – expressed concern that blocking not impact lawful calls. Thus, as noted above, the Order contains several warnings to carriers that they potentially are responsible if calls outside the specific categories are blocked, and it encourages (but doesn’t require) a challenge process for incorrect blocking. In the FNPRM component, the FCC seeks comment on whether to make a challenge process mandatory and, if so, how it should work. Thus the next phase of this issue will shift to instances of erroneous blocking, and how callers may address those concerns.
Additionally, the FNPRM explores the ways that the FCC can measure the effectiveness of its robocalling efforts as well as those adopted by industry. The FCC asks whether it should adopt a requirement for carriers to report the number of blocked calls, and/or to rely on data received through consumer complaints as the benchmark for effectiveness. Commissioner Clyburn noted this provision in her comments during the meeting, and suggested that these changes were adopted at her request. One can expect that Commissioner Clyburn will monitor comments on this issue closely.
With these issues, and the unknown prevalence of erroneous blocking, it’s sure that we will hear more on this in the coming months.