Voice service providers soon may dictate which calls will reach you. The FCC  honed in on “unwanted calls” when it voted at its Open Meeting today to adopt a Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM) permitting voice service providers to implement “Call Blocking by Default.”  We are awaiting and will report on the ruling and notice when it is released. 

Commissioners at the Open Meeting indicated that the adopted version contains changes from the released draft that we discussed three weeks ago. While the final language of the Declaratory Ruling is not yet available for public viewing, we know that the final version of this Declaratory Ruling purports to expand the means voice providers have to target illegal robocalls in the following respects.

First, the Commissioners appeared to be unsatisfied with the results of the Call Blocking Order the agency issued in November 2017, where the FCC cautioned that call blocking should be an exception to the FCC’s call completion rule and should only be authorized in “rare and limited circumstances.” At the time, it only allowed service providers to block 1) unwanted incoming calls that the providers have determined to be illegal robocalls after having reasonably investigated an end-user consumer’s claim or 2) spoofed outbound calls at the request of the subscriber to the originating number if the number is used for inbound calls only and the subscriber to the number has authorized the number to be placed on a Do-Not-Originate list so that outbound calls cannot be made.

With its Declaratory Ruling, the FCC intends to permit call blocking even when calls spoof legitimate in-service numbers (such as spoofing a company’s own headquarter’s number instead displaying the number of an extension), or when calls do not spoof caller ID but are “unwanted” or are from numbers not yet authenticated by the SHAKEN/STIR framework.  This appears to confer on voice service providers unchecked autonomy to use “any reasonable analytics designed to identify unwanted calls.” As many commenters have expressed, and as Commissioner Michael O’Rielly voiced at today’s Open Meeting, analytics on the market are “by no means perfect.” Similar analytics currently in use for spam email filtering, for example, have proven unsatisfactory to many consumers.

The Declaratory Ruling also apparently will allow voice service providers to determine for themselves what are “unwanted calls” and that may, therefore, be blocked.  The Consumer and Governmental Affairs Bureau staff presenting the item made no attempt to define the contours of that term. In general, the FCC seems indifferent about the distinction among illegal robocalls, unwanted robocalls, and unwanted non-robocalls, leaving the distinction to the judgment of voice service providers. Commissioner O’Rielly warned that the term is “vague and subjective,” and therefore this rule, though “well-intended,” may “lead to certain problematic consequences.”

The Declaratory Ruling encourages voice service providers to offer consumers call blocking through an opt-out process. Both the Consumer and Governmental Affairs Bureau and Chairman Pai defended the “Call Blocking By Default” design, contending that as long as consumers are clearly informed and have the opportunity to opt out, the program does not undermine consumer choice. The FCC’s Chief Economist and Chief Technology Officer also blogged yesterday to defend the opt-out approach by citing to an estimated cost of fraud, lost time, and inertia that resulted in low consumer participation in opt-in call-blocking programs.

As the FCC faced understandable blowback from its “Call Blocking By Default” regime as proposed in the draft item released on May 16, comments from the bench today appeared to recognize that this new regime will require that voice service providers have an “expeditious redress processes” to promptly allow call processing whenever erroneous call blocking occurs. This view was conveyed by Commissioner O’Rielly.  Chairman Ajit Pai, however, stated a view that that erroneous blocking has already been addressed.  This is likely to be an area of lively discussion in comments to be filed on the Third FNPRM.

Other Commissioners think the Declaratory Ruling could do more. Specifically, Commissioner Brendan Carr would like to use a “scorecard” to assess how well voice service providers are doing in blocking calls. Commissioners Jessica Rosenworcel and Geoffrey Starks both called for prohibition against voice service providers passing on the cost of implementing call-blocking technologies to consumers. Commissioner Rosenworcel criticized the Declaratory Ruling for stating that the FCC “would expect most if not all voice service providers to offer an opt-out service for free.” “There’s nothing enforceable about an expectation,” she commented at the Open Meeting.

The FCC is expected to officially release its Declaratory Ruling and Third FNPRM in the coming days, at which time the Declaratory Ruling portion will become effective. The Third FNPRM portion will be subject to a public comment period once it is published in the Federal Register. Stay tuned for our follow-up analysis after the release of the final text.