By Russell Fox and Elana R. Safner
This month, reply comment periods wrapped up on several TCPA-proceedings.
In late August, the reply comment period closed on the FCC’s proceeding on default opt-out calling blocking. The proceeding aims to give providers additional tools to fight the “scourge of robocalls” and has generated much stakeholder participation. The Commission had voted in June to adopt the Declaratory Ruling and Third Further Notice of Proposed Rulemaking, and nearly fifty stakeholders filed comments in August. The item, discussed in greater detail in our June TCPA Digest, raised a number of important issues including clarifying that providers may engage in call-blocking on an opt-out basis, and sought comment on a safe harbor provision, the role of reasonable analytics in call-blocking, the creation of a “white list” for critical callers, and a possible mandate of the SHAKEN/STIR caller authentication framework.
Over thirty parties submitted replies into the record. While large voice service providers supported a broad holistic safe harbor that would protect providers from liability when calls are incorrectly blocked based on reasonable analytics, of which SHAKEN/STIR would be one factor, some smaller and rural voice service providers explained the challenges they faced in adopting SHAKEN/STIR, and argued it should not form the basis of a safe harbor until it is more widely deployed. Some parties asked that, in order to avail themselves of a safe harbor, providers be required to implement intercept and other mechanisms to remedy improperly blocked calls. Callers asked the FCC to expand the categories of calls that would be included in a Critical Calls List beyond bona fide emergency services. While some commenters thought that blocking based on reasonable analytics would be too subjective and unstandardized, others explained that it represents a crucial tool that can often be used to fill in the gaps, because SHAKEN/STIR cannot identify whether a call is likely to be legal or illegal, or wanted or unwanted. The FCC will now review the extensive record developed in this proceeding before releasing rules on these issues.
The comment periods also closed in two smaller proceedings on Public Notice, the Request for Clarification from Patrick Maupin (“Maupin Request”) and Petition for Declaratory Ruling from Paul Armbruster (“Armbruster Petition”). Mr. Maupin asked the FCC to clarify that “the purchase of an automobile at retail from a car dealer does not automatically create an [established business relationship] between the automobile purchaser and the third-party provider of a radio subscription service,” which would permit the radio subscription service provider to call the purchaser even if that purchaser is registered on the FTC’s National Do-Not-Call Registry. Mr. Armbruster sought a ruling “confirming that a cellular phone customer can revoke consent to receive any and all unwanted text messages from their cell service provider.” He filed the Petition after allegedly being informed by his wireless carrier that “customers are not able to opt-out of receiving certain purely informational texts.” Each proceeding received only a handful of comments, with industry stakeholders opposing both filings.
While some have speculated that the FCC might address these and a number of other pressing TCPA issues in an omnibus order that many have long felt was “right around the corner,” it seems the wait is likely to continue. Late last month, Commissioner Michael O’Rielly, a big advocate of TCPA reform, said he has little hope for quick action. “I can’t say that I’m optimistic,” he said, referring to the possible timing of a major TCPA overhaul.
Attorneys General (AGs) from all 50 states and the District of Columbia announced a partnership with major phone carriers in a bipartisan effort to combat robocalls. The goal of the partnership is to enhance information sharing in order to better track illegal robocalls. As part of the initiative, a dozen wireless and wireline carriers agreed to a set of eight principles that will help state governments identify and punish bad actors, as well as mutual cooperation to assist in investigations of suspicious call patterns. There is, however, uncertainty about how rigorously carriers will participate and how the agreement will affect robocall-related litigation. Major carriers will also work toward implementing better technology, such as SHAKEN/STIR caller ID authentication and free call-blocking consumer tools.
Like the FCC, the AGs are focusing on international robocalling by “bringing greater transparency and accountability to the carrier-handoff process,” which involves illegal international robocall traffic entering a U.S. network through a domestic carrier. The AGs’ initiative will complement USTelecom’s existing traceback efforts, which sometimes result in referrals to state law enforcement.
The partnership may also put more pressure on participating carriers. North Carolina AG, Josh Stein, who leads the group, said that North Carolina will notify carriers if a bad actor is using their platform as a conduit for illegal robocalls. If the carrier does not take action, the state can lodge a claim against the carrier under its unfair and deceptive trade practices law.
FCC Chairman Ajit Pai issued a statement supporting the AGs’ “bipartisan, nationwide effort to encourage best practices for combating robocalls and spoofing.” He emphasized that the AGs’ and voice service providers’ set of eight guiding principles “align[s] with the FCC’s own anti-robocalling and spoofing efforts.”