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February 2018 TCPA Compliance Monitoring Report
Last month, the Federal Trade Commission (FTC) filed comments in the Federal Communications Commission’s (FCC) eliminating unlawful robocalls proceeding. The FCC’s proceeding is considering, among other things, how the FCC should allow a carrier to block presumptively illegal robocalls. Allowing call blocking is a significant shift in the FCC’s fight against illegal robocalls because the agency has historically been more concerned with ensuring call competition, but as the robocalling problem as persisted and call blocking technology has evolved, the FCC started considering call blocking as a robocall solution in recent years.
In November 2017, the FCC took the first step in permitting carriers to block illegal robocalls by giving carriers limited authority to block calls when 1) the subscriber requests that the carrier block calls originating from the subscribers number (commonly called a Do-Not-Originate or DNO request); and 2) the originating number is invalid, unallocated, or unassigned. The FCC also sought further comment on how to regulate carriers’ call blocking. Specifically, the FCC asked whether it should require carriers to establish a formal challenge mechanism for erroneously blocked calls. It also asked whether the FCC or carriers should establish a white list of calls that will not be blocked.
The FTC’s recent comments address both of these issues and may carry significant weight with the FCC since the FTC and FCC have made attempts in the past to harmonize their approach to unlawful robocalls. While the FTC encourages carriers and third-party applications that block calls to implement practices to reduce erroneous blocking, the FTC worries that the creation of white lists could create a security risk were a white list to fall into the hands of a robocaller. White lists may also give robocallers a target to infiltrate by getting their numbers onto a white list, effectively making the robocaller’s calls unblockable, according to the FTC.
The FTC also advises the FCC against immediately adopting a formal challenge mechanism for erroneously blocked calls. The FTC notes that the limited nature of the FCC’s allowable blocking will make erroneous call blocking unlikely at this time. That said, the risk of a wrongly blocked call is not zero, and the FTC encourages carriers to offer a clear and quick way to resolve such errors without the FCC imposing a formal process.
A number of commenters have responded to the FCC’s call blocking proceeding. The FTC’s comments also are not binding on the FCC, so the FTC comments may not reflect the FCC’s ultimate approach. Still, the FTC and FCC share responsibility for preventing illegal robocalls and unwanted telemarketing calls. Because of this share responsibility, the two agencies have attempted to move in parallel on these issues. If the FCC adopts the FTC approach, it may open the door for carriers to be more aggressive in implementing the limited call blocking authority the FCC has thus far granted.
If you have any questions about the FCC’s ongoing call blocking proceeding or the application of the Telephone Consumer Protection Act’s application to your business, please contact Seth Williams, slw@commlawgroup.com, Nate Hardy, njh@commlawgroup.com, or Jane Wagner, jlw@commlawgroup.com.
