BACKGROUND FCC’s 17-97 Second Report and Order (adopted 29-Sep 2020) instantiated the Robocall Mitigation Database.…
I’ve been studying a draft the FCC published a few days ago of a Declaratory Ruling (DR) they’re planning to adopt at their June 6 meeting. Honestly, I’m flabbergasted at the FCC’s action. You might know that generally I am not a fan of most robocalls – even the legal ones. The DR gives phone providers (AT&T, T-Mobile, Vonage, etc.) broad discretion to block “unwanted” calls.
But I am nervous that this DR could turn the calling/blocking world into even more of a Wild West.
The DR assumes that calls will be blocked according to Caller-ID. It puts virtually no restrictions (save “public safety entities, including PSAPs, emergency operations centers, or law enforcement agencies”) on what numbers a carrier might choose to put on the list. (“[V]oice service providers may offer opt-out call-blocking programs based on any reasonable analytics designed to identify unwanted calls.”)
The DR references a laundry list of reasons (previously offered up by AT&T) that a caller might end up on the list: “large bursts of calls in a short timeframe; low average call duration; low call completion ratios; … large volume of complaints related to a suspect line; sequential dialing patterns.” And it encourages providers to come up with other reasons to block. (“Although we suggest these as examples of potentially effective opt-out call-blocking programs, this list is not exhaustive.”)
But the FCC took AT&T’s list out of context. AT&T presented it in under the specific scope of ILLEGAL calling and included a second component, “Investigation” (page six in the original AT&T filing) where they explained how they research a number before adding it to their block list. The FCC ignored this.
The DR makes no distinction regarding blocking ILLEGAL versus UNWANTED calls. We know that illegal calls are defined in the law; unwanted is a subjective assessment and varies according to the call recipient. Now it will be up to each provider to make that determination on behalf of their subs. Legally-permitted political, survey and charity calls could all be validly blocked by a provider under this DR. Of course, a consumer could opt out if they thought to do so. (Personally, I don’t like any of those calls, but I’d prefer to opt INTO a program that explicitly diverted them; I’d choose to send them to voice-mail if such an option existed.)
The DR doesn’t mandate that any clear indication be given to the CALLER or the CALLED PARTY that calls are in fact being blocked. The caller might receive a busy signal or endless ringing or be shunted directly to voice-mail or hear an unspecified announcement. The called party might be completely unaware that they are not receiving certain (perhaps wanted) calls.
The DR directs that if a provider implements such a program, they must inform their subscribers of that fact, and give them some way to turn it off. Just as many consumers have been too unaware or lazy to opt IN to blocking or labeling programs, aren’t they just as likely to not think about opting OUT? Especially if they don’t know that they are missing calls, they won’t be motivated to opt out. (Today, every unwanted call is a subtle reminder that maybe they should opt IN to a program if one exists.)
The FCC is driving providers to adopt the new approach: “We encourage voice service providers to offer these tools immediately to their customers, and where they already provide opt-in call-blocking programs, to make them the default for all consumers.”
What’s even scarier to me is what happens if an illegal robocaller appropriates someone else’s caller-ID for their campaign, resulting in that caller-ID going into a blocking program because it now meets the AT&T criteria (or some other). Suppose that caller-ID belongs to my hospital or my school or my bank or MY SMALL BUSINESS or MY PERSONAL PHONE? Now I am completely screwed. The DR mandates no way to know what list(s) I’m on (as a caller) and no way to get off. Similarly, as a caller I may find that a small group of recipients has “voted me off the island” even though most of the people I’m calling want my calls. As a call recipient, I may miss calls I want because my provider added the caller’s number to their block list for the wrong reason.
And what might this cost? The DR says “we would expect most if not all voice service providers to offer an opt-out service for free, as many already do.” (In fact, they don’t already offer opt-OUT services for free, because until this DR, it wasn’t clear that opt-out was permitted.) But the DR doesn’t REQUIRE that it be free.
It appears that a service provider could implement a blocking program, charge each subscriber ten cents per month, enroll every one of their subscribers by default, give them the ability to opt out, and that would be fine per this DR. By FCC math in the DR, “assuming the public benefit of eliminating an illegal call is only ten cents on average,” if each of us gets an average of ten illegal calls per month (plus some number of unwanted calls), this approach offers at least a 10X ROI to the subscriber.
As I said, I am not a fan of robocalls generally, including legal ones. But is this DR really good for consumers?
I don’t know what’s going to happen, but I’m not sure it’s going to be the desired outcome. Maybe stakeholders will mount enough opposition and it won’t pass on June 6. Maybe carriers won’t implement anything because the DR doesn’t mandate implementation and there’s too much potential for civil litigation. What do you think? Did I miss something?