What will the FCC be tackling next?
Chairman Pai’s theme for the June 6, 2019 meeting is “Blocking and Tackling Robocalls.” The centerpiece of the three-item agenda is a proposed declaratory ruling that, in the Chairman’s words, “would allow phone companies to implement strong call-blocking services as the default setting for their customers.” Instead of being offered call blocking on an opt-in basis, carriers could “block calls unless you affirmatively opt-out. This could mean a major reduction in robocalls, as call blocking would become the rule, not the exception. This ruling would also make clear that phone companies can allow consumers to use their own contacts as a “white list.” He’s billing this as the item that will give consumers “much needed relief” from the “scourge of unwanted robocalls.”
Let’s take a more in-depth look at the proposed Declaratory Ruling on robocalling.
The FCC has previously stated that offering call blocking service does not violate providers’ call completion obligations under the Communications Act (Act) and made it clear that network-based blocking (without consumer choice) may be implemented under certain circumstances. Nevertheless, it acknowledges that “uncertainty regarding when voice service providers may implement call-blocking programs remains.” Accordingly, the declaratory ruling is intended to resolve uncertainty and make clear the call-blocking tools that voice service providers can offer their customers.
As drafted, the ruling would apply to all voice service providers, which would include both traditional wireline and wireless carriers and VoIP providers that offer voice telephony services, including those that use time-division multiplexing (TDM), interconnected and one-way voice over Internet Protocol (VoIP), or commercial mobile radio service.
Most blocking options today require consumers to opt in to call-blocking programs. The ruling would clarify that voice service providers may offer consumers call blocking through an opt-out process. The ruling also makes clear that an opt-out offering should be extended to existing customers, not just new customers. “We encourage voice service providers to offer these tools immediately to their customers, and where they already provide opt-in call-blocking programs, to make them the default for all consumers. To that end, we encourage voice service providers to make consumers aware of the programs’ availability and, for that limited subset of consumers who do not want to participate, make the opt-out process simple and easily accessible.”
The ruling has five major points:
- Voice service providers offering opt-out call-blocking programs must offer sufficient information so that consumers can make an informed choice as to whether they wish to remain in the program or opt out. Voice service providers should clearly disclose to consumers what types of calls may be blocked and the risks of blocking wanted calls, and they should do so in a manner that is clear and easy for a consumer to understand.
- Voice service providers may offer opt-out call-blocking programs based on any reasonable analytics designed to identify unwanted calls.
- Voice service providers may not block calls from public safety entities, including PSAPs, emergency operations centers, or law enforcement agencies. Call blocking should not in any event interfere with the country’s emergency communications systems.
- Call blocking may not be used to avoid the effect of the FCC’s rural call completion rules.
- Providers may offer an opt-in white list program using the consumer’s contact list. This means that the ruling only applies to white-list programs requiring informed, opt-in consent. Voice service providers must clearly disclose to consumers the risks of blocking wanted calls and the scope of information disclosed in a manner that is clear and easy for a consumer to understand.
The item also includes a Third Further Notice of Proposed Rulemaking that:
- Proposes to create a safe harbor for voice service providers that block calls for which Caller ID authentication fails;
- Seeks comment on extending the safe harbor to the blocking of calls that are unsigned;
- Proposes to require voice service providers that block calls to ensure that emergency calls reach consumers; and
- Seeks comment on protections and remedies for callers whose calls are erroneously blocked.
Rounding out the agenda is a Notice of Proposed Rulemaking designed to improve aviation safety and a Report and Order that would update to the FCC’s “leased access” rules for cable operators. The leased access order would, among other things:
- Eliminate the requirement that cable operators make leased access available on a part-time basis.
- Revise the FCC’s rules to allow all cable operators, not just those that qualify as “small systems” under that rule, to respond only to bona fide requests from prospective leased access programmers.
- Extend the timeframe within which cable operators must respond to prospective leased access programmers, from 15 calendar days to 30 calendar days for cable operators generally, and from 30 calendar days to 45 calendar days for small cable systems.
- Permit cable operators to impose a maximum leased access application fee of $100 per system-specific bona fide request and deem reasonable a security deposit or prepayment equivalent of up to 60 days of the applicable lease fee.
Let’s hope the FCC succeeds in tackling robocalling before it reaches the proverbial end zone!