The Federal Trade Commission (“FTC”) was not afraid to support the imposition of rules that require voice service providers to completely block certain categories of robocalls. But the agency is now worried about the additional work needed to ensure that legitimate calls are not blocked. Consequently, the agency has asked its fellow regulators at the Federal Communications Commission (“FCC”) to refrain from introducing a formalized challenge process for erroneously blocked calls, claiming that such a process is not yet necessary.
"Target and eliminate unlawful robocalls"
Filed on January 31st, the FTC’s recent recommendation to the FCC follows the FCC’s November 2017 Report and Order, which imposed new rules to “target and eliminate unlawful robocalls.” In that Report and Order, which took effect on February 12th, the FCC authorized two categories of provider-based call blocking: (1) when the subscriber to a particular telephone number requests that the voice service provider blocks calls originating from that number; and (2) when the originating number is invalid, unallocated, or unassigned. The FCC followed the November 2017 Report and Order with a Further Notice of Proposed Rulemaking (“FNPRM”) seeking further comment on issues “related to the rules” adopted by the Report and Order, including potential mechanisms to quickly address erroneously blocked calls without undue harm to callers and consumers.
Through its most recent FNPRM, the FCC recognized how important it is to ensure that voice service providers complete all legitimate phone calls and that providers “identify and quickly rectify any erroneous blocking that may occur.” The FTC does not believe an erroneous-blocking remedy needs to be addressed immediately, as the categories of blocked calls are “quite limited,” meaning the number of mistakenly blocked calls should be “easy to verify and correct.” Essentially, the FTC is saying that, until the problem becomes big enough, no structured solution should be implemented and providers should be left to address the issue with no guidance from regulators.
This lack of guidance may be acceptable if legitimate calls aren’t blocked, but that will likely not be the case. Even the FTC recognizes that, while “the risk of erroneous blocking authorized by the Report and Order is likely low, it is not zero.” Because the FCC’s call blocking rules are so new, voice service providers can—and likely will— experience implementation errors and thereby inadvertently block calls from legitimate numbers. For example, if a legitimate caller is assigned a previously unallocated number, and the provider’s information is not up to date, then calls from that number could be blocked. While this is bad enough on its own, failing to provide the caller and the provider with a uniform process for resolving the issue only makes matters worse.
Blocking illegitimate robocalls is a noble cause, but where the FCC’s rules may—and do—create a potential problem, the agency should also be prepared to respond with a concrete, formalized solution. The FCC’s FNPRM provides a route to propose such a solution, and with reply comments open until February 22nd, interested parties can still ensure the FTC’s “do nothing” approach is not adopted and that erroneously blocked, legitimate phone calls quickly find their way to their intended recipients.
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