Robocalls and telemarketing calls are reliably the top source of consumer complaints received by the FCC. Despite the good intentions of the 1991 Telephone Consumer Protection Act (TCPA), FCC decisions implementing the TCPA, and the collective efforts of the telecom industry, there has been little relief from these unwanted calls—particularly at dinner time. More problematic is that an increasing number of these calls use false (or spoofed) Caller ID to perpetrate scams designed to trick call recipients into believing the call is coming from the Internal Revenue Service, law enforcement, computer support, or a credit card company.
The FCC is now making another attempt to reduce unwanted and sometimes fraudulent telemarketing calls and robocalls. In a draft Notice of Proposed Rulemaking and Notice of Inquiry circulated March 2nd and to be considered formally at the next FCC Open Meeting on March 23rd, the FCC is proposing to adopt rules that would allow voice service providers (including wireline, wireless and VoIP providers) to block spoofed calls in certain circumstances.
In the draft NPRM, the FCC is proposing to codify guidance issued last year by the FCC’s Consumer Bureau permitting voice service providers to block calls that use a number for Caller ID where the legitimate holder of that number requests such blocking in order to prevent its number from being spoofed. Such calls are deemed to be presumptively spoofed and therefore likely to violate the FCC’s anti-spoofing rules. The FCC is grappling with how service providers can share among themselves that a customer wishes to have a telephone number blocked, and how that request can be honored efficiently and effectively.
The FCC is also proposing to permit providers to block calls that use a Caller ID number the provider knows is not assigned to anyone. The use of unassigned phone numbers in a Caller ID is deemed a strong indicator of Caller ID spoofing intended to defraud and harm the called party. The FCC indicates there are three categories of unassigned phone numbers, and is seeking comment on new rules permitting providers to block calls from each category. The FCC is also asking whether other categories of numbers should be considered unassigned for this purpose.
For similar reasons, the FCC is proposing to allow providers to block calls from invalid telephone numbers. Examples include numbers from unassigned area codes (e.g., 911), those that do not contain 10 digits, or those that repeat a single digit (000-000-0000). The FCC is seeking comment on what it can do to assist providers in more readily identifying or blocking calls from invalid numbers.
In an effort to be expansive, the FCC is proposing to allow providers to block calls from numbers that are valid, but which have yet to be assigned to any specific service provider for customer use. The FCC is also seeking comment on whether and how any rules adopted would apply to internationally-originated calls.
To keep the blocking process as simple as possible, the FCC is not proposing to require that providers get opt-in consent from their subscribers before blocking calls to those subscribers. The assumption is that no reasonable person would want to receive fraudulent or spoofed calls.
In the draft Notice of Inquiry, the FCC addresses industry concerns that blocking presumptively illegal calls might run afoul of existing FCC requirements that providers not block calls at all. Specifically, the FCC is seeking information on authorizing providers to block calls that are reasonably likely to be illegal or fraudulent based on certain objective criteria. This includes a discussion of methods that can be used to more accurately identify illegal and fraudulent calls and how to minimize false positives when blocking calls based on these methods.
Related to that concern, the FCC is asking for comment on creating a safe harbor for providers. The intent would be to assure providers blocking calls in accordance with the adopted rules that they will not find themselves charged with violating the FCC’s call blocking rules or have their FCC statistics on call completion rates adversely affected.
Of course, the FCC recognizes that there may also be situations where legitimate calls are blocked, and is therefore seeking comment on how that problem may be addressed (e.g., using a white list or establishing a challenge mechanism for calls blocked in error). In that regard, the FCC wants to establish a process to allow legitimate callers to notify providers when calls are improperly blocked and to require providers to immediately cease blocking legitimate calls.
The FCC’s draft document specifically states that it is not a final version. The early circulation of the draft allows for public input up until one week before the March 23 meeting (allowing input up to the close of business on March 16). In our experience, getting issues fixed before the Notice of Proposed Rule Making is adopted, rather than trying to alter the proposal after it is incorporated into an adopted NPRM, is the better path. As a result, if you are concerned about any language in the draft that has been circulated, you should communicate that to the FCC now, rather than waiting for the comment cycle to commence after the NPRM is adopted.