With partial dissents from two Commissioners, the FCC today clarified in a declaratory ruling that voice service providers may use analytics to identify robocalls that are likely to be unwanted and to block them on a default basis, provided they inform consumers and offer them the ability to opt out. It also said that providers could offer to block all calls that do not originate from a subscriber’s “white list” or contact list, and it sought input on a proposal to mandate the adoption of a call authentication system if carriers do not implement an industry solution by the end of the year.
The declaratory ruling and third further notice of proposed rulemaking (FNPRM) adopted at today’s FCC meeting (see separate stories) in CG docket 17-59 and WC docket 17-97.
The declaratory ruling will allow providers “to protect more consumers from unwanted robocalls and making it more cost-effective to implement call blocking programs,” according to an FCC press release.
The accompanying third FNPRM proposes mandate implementation of the industry’s SHAKEN/STIR caller ID authentication framework “if major voice service providers fail to do so by the end of this year.” It also seeks comment on a possible “safe harbor for providers that block calls that are maliciously spoofed so that caller ID cannot be authenticated and that block calls that are ‘unsigned,’” the press release adds.
The third FNPRM also seeks comment on requiring providers to establish a “critical call” list of numbers that could not be blocked, such as the outbound numbers of 911 call centers, Jerusha Burnett, an attorney adviser in the Consumer Policy Division of the FCC’s Consumer and Governmental Affairs Bureau (CGB), said in presenting the item to the Commissioners at the meeting. It also seeks comment on remedies for callers whose calls are erroneously blocked.
Commissioner Mike O’Rielly dissented from the delegation of authority to the CGB staff to collect “any and all” information from providers deemed necessary to compile reports on the deployment and implementation of call authentication.
In his separate statement, Mr. O’Rielly praised Chairman Ajit iPai “for his enormous leadership on the fight to eliminate bad robocalls. He’s been very incredibly focused on reducing this perverse problem. I am at a loss to see more steps that the Chairman could take on the matter.”
However, he expressed concern that although the item is “very well-intended,” it might “lead to certain problematic consequences. Completely legitimate organizations and businesses regularly engage in so-called ‘robocalling’ to provide consumers with critical and time-sensitive information, such as fraud alerts, flight schedule changes, school closures, delivery window delays, prescription notices, appointment reminders, public safety alerts, and—yes—anti-delinquency notices. Efforts to attack illegal and fraudulent calls should not restrict or prevent these beneficial robocalls.”
Commissioner O’Rielly also emphasized the need for mechanisms for “to ensure swift redress for erroneously blocked calls. I have heard countless accounts of erroneous blocking and labeling both prior to and in the aftermath of the 2017 [spoofed-call blocking] Order and welcome the adoption of a future item in response to that record in prompt course.”
He added, “Notably, that 2017 Order only allowed carriers to block very circumscribed categories of calls, namely, calls on a Do-Not-Originate list, and those from invalid, unallocated, or unused numbers. That is a narrower universe than the vast range of calls affected by today’s Declaratory Ruling, which enables opt-out blocking of illegal and ‘unwanted’ calls. While I fully and wholeheartedly support Commission efforts to purge illegal calls from our networks, I am concerned about encouraging default blocking of so-called ‘unwanted’ calls. Categories like “wanted” or “unwanted” can be somewhat vague and subjective, to put it mildly. Giving carriers such vast discretion to decide which calls are unwanted could lead to wanted calls, containing highly-pertinent consumer information, being blocked.”
Commissioner O’Rielly also noted that the FCC did not set a maximum error rate or performance caliber for the analytics used to determine which calls should be blocked.
“As any e-mail user knows, spam filters, which operate through analytics, are by no means perfect. Almost everyone has had the experience of missing important messages because of an oversensitive filter. For a service that is generally free and unregulated, I can accept placing the burden on consumers to go into their spam folders periodically to look for erroneously-labeled emails. That same circumstance doesn’t exist for voice calls, which have been hyper-regulated for decades and do not feature a means to determine what has been missed. To the extent that providers implement this new default regime, I worry that consumers will only realize that important voice calls have been blocked after it’s too late,” he said.
Mandating a redress procedure for erroneously blocked calls “didn’t exactly fit” procedurally into a declaratory ruling, Commissioner O’Rielly acknowledged. “However, the Chairman did agree to add language noting that a ‘reasonable’ blocking program would include a mechanism for resolving complaints. That is a huge step forward even if it may not provide a complete respite from blocking purgatory. I thank the Chairman for recognizing the need for effective redress.”
“I hold out hope that all goes well because there is so much at stake. At the same time, put me down as someone open to refining some of the item’s points of contention going forward,” he said.
“Nonetheless, I am going to dissent on one smaller issue: the draft’s delegation to bureau staff to collect ‘any and all relevant information’ from voice service providers to prepare reports on the state of call blocking. I worry that this language is breathtakingly expansive and gives the bureau virtually unlimited authority to demand whatever data it wishes from carriers. I have raised similar concerns over past delegations and see this instance as unnecessary and unaccountable, even if based in good intentions.
Accordingly, I will vote to approve the majority of the item and dissent on that one piece,” Commissioner O’Rielly concluded.
Commissioner Jessica Rosenworcel dissented from the item’s lack of a prohibition on providers’ charging subscribers for call-blocking.
In her separate statement she said, “As far as this new blocking technology goes, so far, so good. But there is one devastating problem with our approach. There is nothing in our decision today that prevents carriers from charging consumers for this blocking technology to stop robocalls.
“I think robocall solutions should be free to consumers. Full stop. I do not think that this agency should pat itself on the back for its efforts to reduce robocalls and then tell consumers to pay up. They are already paying the price — in scams flooding our phone lines; wasted time responding to false and fraudulent calls offering us what we did not ask for, do not want, and do not need; and a growing distrust in our most basic communications,” she continued.
“I like hope. But I am not interested in pinky promises. I think we should be up front and clear with consumers that today’s decision offers no more than an ‘expectation’ that phone companies installing this technology will not charge consumers a premium for its use. But every one of us knows there is nothing enforceable about an expectation. There is nothing here that prevents companies from charging each of us whatever additional fees they want to put this call blocking technology on our line,” Commissioner Rosenworcel said.
“I’m a consumer, too. I receive robocalls at home, in my office, on my landline, on my mobile. I’ve even received multiple robocalls sitting here on this dais. I want it to stop. But I do not believe I should have to pay for that privilege. I am disappointed that for all our efforts to support new blocking technology, we couldn’t muster up the courage to do what consumers want most — stop robocalls and do it for free. On this aspect of today’s decision, I dissent,” she concluded.
Commissioner Brendan Carr said, “To ensure that providers do step up their efforts, I asked my colleagues to expand today’s Notice to seek comment on setting up a robocall scorecard. The idea is to publicize data on each carrier and how effective they are at targeting and blocking illegal calls. By bringing transparency to these metrics, we could enhance consumer choice and create additional incentives for carriers to continue their efforts to crack down on illegal calls. So I look forward to seeing how the record develops on this idea.
“Finally, our action today is no silver bullet. It’s part of a series of actions we are taking to break the back of illegal robocalls. Another important step will be industry’s implementation of the SHAKEN/STIR call authentication framework. And on this score, I want to commend Chairman Pai for expanding today’s Notice to seek comment on requiring carriers to implement this framework. By seeking comment today, we are now in a position to move directly to an order if industry’s own efforts to implement the regime fall short,” Commissioner Carr added.
Commissioner Geoffrey Starks said, “I support today’s item. I am hopeful that clarifying that providers may offer informed opt-out call blocking services will make these tools available to millions more consumers as soon as possible. I appreciate that this item notes that these services should not negatively impact emergency calls or rural call completion obligations. And I am glad that we will now be positioned to act on mandating Caller ID authentication by the end of the year, if needed.”
He continued, “I was supportive of edits proposed by my colleagues to ensure that such blocking is offered in a competitively neutral and non-discriminatory way, to study the impact of blocking on 911 and public safety, and to empower consumers to gather additional information about the effectiveness of call blocking solutions. I am also supportive of revisions proposed by my colleagues that provide callers with a mechanism to dispute blocked calls that may have been misidentified, provided that consumers remain in the driver’s seat throughout the process.”
Commissioner Starks thanked his colleagues for supporting his own proposal addition of a section requiring the CGB, in consultation with the Wireline Competition Bureau and the Public Safety and Homeland Security Bureau, “to gather information from carriers and produce a series of comprehensive reports on the deployment and implementation of call blocking and Caller ID authentication. As I have made clear in a number of recent items, it is imperative that in dealing with the most significant issues of telecommunications policy — such as who has access to broadband — the Commission must gather and rely on clear and accurate data.
“Specifically, at my request, the item will give us critical feedback on how our tools are performing. It will now study the availability of call blocking solutions; the fees charged, if any, for these services; the effectiveness of various categories of call blocking tools; and an assessment of the number of subscribers availing themselves of available call blocking tools. The item also now asks that the reports assess the impact of previous Commission rule changes and, critically, include information on the state of deployment of Caller ID authentication through the implementation of the SHAKEN/STIR framework for the first time ever,” he continued.
Commissioner Starks also said he looked forward to comments in response to an edit he proposed to the third FNPRM seeking comment on “setting up a robocall scorecard. The idea is to publicize data on each carrier and how effective they are at targeting and blocking illegal calls. By bringing transparency to these metrics, we could enhance consumer choice and create additional incentives for carriers to continue their efforts to crack down on illegal calls. So I look forward to seeing how the record develops on this idea.”
He also thanked Chairman Pai “for expanding today’s Notice to seek comment on requiring carriers to implement [the SHAKEN/STIR call authentication] framework. By seeking comment today, we are now in a position to move directly to an order if industry’s own efforts to implement the regime fall short.”
In his statement, Chairman Pai said, “I’m optimistic that all of these measures will meaningfully reduce the number of unwanted robocalls that Americans get. Of course, I recognize that not everyone is a fan of our approach. Some opponents themselves are subjecting consumers to a torrent of unwanted robocalls. My message to them is simple: The FCC will stand with American consumers, not with those who are badgering them with unwanted robocalls.
“I also recognize that some who make legitimate calls have expressed concern about our decision today. But I believe that we’ve appropriately addressed their concerns by making clear that any reasonable call-blocking program offered by default must include a mechanism for allowing legitimate callers to register a complaint and for having that complaint resolved,” Chairman Pai added.
“Turning to the Third Further Notice, we advance significant proposals related to the Caller ID authentication framework known as SHAKEN/STIR. SHAKEN/STIR will be critical in telling consumers whether the Caller ID information they see is real or spoofed. And it can be used to assist with blocking spoofed calls. That’s why we’re proposing a safe harbor for phone companies that choose to block calls that can’t be authenticated under SHAKEN/STIR,” he said.
“When it comes to the implementation of SHAKEN/STIR, I have made clear my expectation that major carriers will get this done by the end of the year. I believe that a voluntary, industry-led process is most likely to achieve this goal. And to date, I’ve been pleased by the progress that industry has made and am optimistic that the end-of-the year deadline will be met. But in case it isn’t, the FCC will not hesitate to take regulatory action. That’s why today, we’re taking the necessary steps so that we will be in a position to take regulatory action early next year, should that be required,” Chairman Pai added.
Reaction from Capitol Hill was generally laudatory, although some Democrats found fault with issues such as the lack of a prohibition on charges for call-blocking. There were also indications of continued bipartisan appetite for further congressional action in this area.
House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.) said, “I’m glad the FCC took action to allow more blocking of robocalls, but I’m disappointed the Commission’s ruling doesn’t ensure consumers don’t foot the bill for stopping these calls. Consumers should not have to pay one cent more of their hard-earned money to get rid of these illegal and unwanted calls. The Committee will markup consumer-focused legislation soon to stop the robocall epidemic.”
House Commerce Committee ranking minority member Greg Walden Walden (R., Ore.) and communications and technology subcommittee ranking minority member Bob Latta (R., Ohio) said, “We applaud Chairman Pai and the FCC for acting today to provide new tools to stop unwanted robocalls. Last Congress, as part of RAY BAUM’s Act, we provided the FCC more authority to go after bad actors who abuse us all with their unwanted calls and texts. Now, it is time for Congress to redouble our bipartisan efforts to hang up the phone on spoofed and malicious robocalls once and for all.”
Sen. Amy Klobuchar (D., Minn.) said, “Today, the FCC made an important new ruling to help protect consumers from robocalls — by allowing carriers to block robocalls, consumers will be free from annoying, unwanted, and potentially fraudulent calls. While this is a promising step, we still must make sure we are protecting consumers’ choice and ensuring that the price of using these call-blocking technologies does not pass to the consumers. That’s why I’ve supported bills like the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, bipartisan legislation that gives regulators more time to find scammers, increases civil forfeiture penalties, and promotes call authentication and blocking adoption.”
The Senate passed the TRACED Act last month (TR Daily, May 23).
Patrick Halley, senior vice president–policy and advocacy at USTelecom, which leads the Industry Traceback Group, said, “The FCC took an important step in the robocall wars today by empowering carriers to expand their efforts to block illegal and unwanted robocalls. Greater flexibility for carriers is a win for consumers. The work is far from done, however, and we look forward to working with the Commission and other stakeholders to further incentivize the ongoing industry innovation required to stop the scamming, spoofing and endless aggravation of phone users.”
CTIA VP–regulatory affairs Matthew Gerst said, “Today, the FCC took another important step towards relieving American consumers from the plague of illegal and unwanted robocalls by ensuring they can automatically benefit from innovative call blocking tools and make informed decisions about which calls they want to receive. We thank the Commission for continuing to make clear that protecting consumers from the scourge of robocalls is a bipartisan priority.”
In a blog post, Ronan Dunne, executive VP at Verizon Communications, Inc., and chief executive officer of Verizon’s Consumer Group, said, “Verizon’s wireless customers can already choose to automatically block robocalls for free using our industry-leading Call Filter service, which sends the blocked calls directly to voicemail based on whatever category that the consumer selects. We’re also in the process of making our Call Filter service even better. As we continue to evolve the service, we intend to take advantage of the new flexibility the FCC is giving us. With the help of these new FCC rules, we’ll be able to provide our customers the benefits of spam alerts and blocking more broadly and conveniently.”
Joan Marsh, EVP–regulatory and state external affairs at AT&T, Inc., said, “Today, the FCC took another major step in combatting the robocall problem. The Commission’s action will enable broader adoption of call blocking tools to avoid unwanted robocalls and lays the groundwork for providers to block more robocalls to protect their customers and networks. AT&T remains committed to working with the FCC and the industry to further curtail illegal and unwanted calls.”
ACA President and CEO Matthew Polka said, “"Those consumers who are less familiar with and slower to adopt new technologies are particularly likely to benefit from blocking tools made available on an opt-out basis, as today’s ruling contemplates.”
Maureen Mahoney, policy analyst for Consumer Reports, said that there is still much more work to be done — including getting phone companies to implement anti-robocall technology, and ensuring that this service is provided to consumers free of charge. The FCC also needs to issue strong rules clarifying the Telephone Consumer Protection Act’s coverage, to stop robocallers from attempting to evade it. We look forward to continuing to work with the FCC and Congress until consumers have the protections they need.” —Lynn Stanton, [email protected]
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