Written by Artin Betpera and David Carter

The FCC has adopted a declaratory ruling allowing carriers to automatically opt consumers into call blocking programs.  The new rules give carriers the option of opting consumers in by default to call blocking technology that blocks “unwanted” calls based on “reasonable analytics.”

 Notably, the rules are not mandatory, but permissive.  In other words, the FCC is not actually requiring carriers to opt consumers into call blocking.  Instead, under the new rules, carriers “may” (i.e. have the option, but are not required to) opt consumers into call blocking by default.  While this means carriers are theoretically free to disregard the ruling, it seems doubtful they’ll do so, and the rule leaves considerable white spaces in terms of the techniques/technology that carriers may deploy to block calls.  This leaves a significant lack of clarity over how these new rules will impact consumer-facing businesses that communicate with their customers and potential customers through voice calls.

 Summary of the New Rules

 Under the new regulations that will be added to 47 C.F.R. § 64.1200, “[v]oice carriers may block calls so that they do not reach a called party.”  This is the basic rule.  While the proposed regulation outlines some limits on how far call blocking may go (i.e. prohibiting blocking of emergency calls from Public Safety Answering Points or other emergency services, government-originated calls, and emergency calls from schools) the amendments don’t do much more than that.

 The Declaratory Ruling itself provides a little more meat on the bone.  To start, the FCC defines the term call “blocking” in fairly broad terms as: (1) stopping calls outright so they do not ring a phone; (2) routing calls directly to voicemail without ringing the phone; (3) “some other treatment” such as interactive voice response session or voice call screening.  From there, the FCC’s new ruling does two main things.  The first, it permits opt-out call blocking “based on any reasonable analytics designed to identify unwanted calls.”  The second, it clarifies that carriers may continue to offer opt-in white-list call blocking programs. 

 Analytics-Based Call Blocking

 Under the new rule, the FCC has authorized carriers to deploy analytics-based call blocking by default.  Specifically, the FCC’s new rule only requires that this technology be based on “reasonable analytics.”  The examples of “reasonable analytics” provided by the FCC show that there will be a lack of standardization over how different carriers working with different call blocking technology providers will go about blocking calls.  Those examples include:

  • Large bursts of calls in a short timeframe
  • Low average call duration
  • Low call completion ratios
  • Invalid numbers placing a large volume of calls
  • Common Caller ID Name values across voice service providers
  • A large volume of complaints related to a suspect line
  • Sequential dialing patterns
  • Neighbor spoofing patterns
  • Patterns that indicate TCPA or other contract violations
  • Correlation of network data with data from regulators, consumers, and other carriers
  • Comparison of dialed numbers to the National Do Not Call Registry

“White-List” Call Blocking Not Authorized By Default

The analytics-based call blocking that the FCC’s Declaratory Ruling allows carriers to turn on by default must be distinguished from a different type of call blocking, known as “white list” call blocking, which the Declaratory Ruling prohibits carriers from implement without an express consumer request.  White-list call blocking works by “requiring consumers to specify the telephone numbers from which they wish to receive calls” and all calls not on the user’s “white list” are automatically blocked and not transmitted to the consumer.  The FCC’s new rules do not permit carriers to implement this type of white-list call blocking by default.  Instead, this type of blocking, which would block far more than “spam calls,” may only be activated when expressly requested by a consumer.  Thus, under the Commission’s new Declaratory Ruling, the only type of blocking that can be unilaterally implemented by a carrier is blocking based on “reasonable analytics.”

Consumer Disclosure Requirements

The FCC’s ruling states that if carriers exercise their new ability to opt consumers into call blocking by default, then they 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.”  While this is the only concrete aspect of the disclosure requirements under this new rule, the FCC has provided some supplementation through suggestions on the substance and mode of disclosures.  For example, the FCC has stated it expects carriers to disclose what types of calls may be blocked, the risks of blocking wanted calls, and the method by which the carrier chooses to block calls.  The FCC has also expressed an expectation that such disclosures will be simple, straightforward, and easy to understand.

Emergency Calls

The FCC’s new call blocking rules also prohibit carriers from blocking “certain” emergency calls, including at minimum “the outbound numbers of 911 call centers and government emergency outbound numbers.”  The rules around emergency calls are still crystalizing pending the FCC’s issuance of its final ruling.  However, what seems clear is that the rules will be limited to governmental emergency calls, leaving out emergency calls from private actors (more on that below).

Significance and Potential Impacts of the Ruling

In general, carriers have (until now) been prohibited from engaging in call blocking of “telecommunications services” absent a prior request from the consumer as an unjust and unreasonable practice under Section 201(b) of the Communications Act.  The FCC’s new ruling therefore deviates from decades of precedent by allowing carriers to block telecommunications service traffic without a consumer request.  And as well-intentioned as the FCC’s ruling might be, its departure from long-standing precedent may lead to the rule being challenged in court.

Aside from this, given the permissive and largely open-ended nature of the FCC’s ruling, it is difficult to otherwise predict exactly how these new rules will play out, and whether carriers will choose to implement default call blocking in the first instance.  Additionally, comments from industry and other private stakeholders that preceded the ruling highlight the substantial risks of false-positives with existing call blocking technology. 

Indeed, the FCC’s loose requirement of “reasonable analytics” will likely result in a call blocking landscape that lacks any sort of standardization.  And this landscape is made more challenging by the fact that many types of perfectly legitimate calls—particularly those to lists of consenting telephone numbers—might exhibit the same “patterns” that call blocking technology will look for when blocking calls (including call volumes and frequencies). 

Moreover, the FCC’s ruling does not seem to do much to address the potential blocking of emergency calls by non-public entities.  This creates an additional risk that certain emergency notifications such as utility service outage notifications, fraud alerts, and similar messages might be caught up in the black-box call blocking dragnets the FCC is now allowing carriers to deploy by default.

Finally, while consumers are unfortunately the victims of illegal call spoofing that this call blocking technology is intended to curb, so too are the legitimate businesses and other organizations whose numbers are spoofed.  Those businesses and organizations not only suffer reputational and financial harm but, under these new rules, will bear the burden of undoing the additional problems caused when call blocking applications wrongly label their number as spam or scam.  And this is not speculation—our team regularly helps companies who have been victimized by illegal spoofing control and unwind this sort of damage.

If anything, the FCC’s new rules mean that we will see non-standardized call blocking technology deployed on a greater scale, with varying results.  This will create disparate issues for callers to deal with depending on which carriers decide to deploy opt-out call blocking, what type of technology they deploy, and how that technology goes about blocking calls.  The potential for unintended consequences is significant, and businesses should be prepared to be nimble in addressing these potential problems.

While the FCC’s Declaratory Ruling has been adopted, it is still possible to seek reconsideration of the order and/or appeal the decision to the federal courts.  If your company is interested in exploring these options, please contact your Womble Bond Dickinson attorney or a member of our TCPA Defense Force.


 

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Meet the TCPA Defense Force. A team of experience professionals that focus like a laser on the TCPA and provide comprehensive services that solve a number of TCPA problems. The TCPA Defense Force aims to mitigate TCPA exposure for both creative marketing teams and conscientious companies that engage their customers through telemarketing.