New FCC Actions Continue Battle Against Robocalls

By: Andrew Regitsky

The legacy of FCC Chairman Ajit Pai will be debated for years, but no matter how you feel about him personally, his Commission has done a yeoman’s job attempting to stop illegal robocalls. As 2020 ended the FCC took two additional steps to try to eliminate this infuriating practice. First, the agency adopted restrictions on non-telemarketing robocalls to consumers’ home phones. In a Report and Order released on December 30, 2020 in Docket 02-278, as part of implementing Section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), the Commission reviewed exemptions on non-telemarketing robocalls made to residential phones from non-commercial, commercial, and tax-exempt nonprofit organizations. Based on this review, the Commission amended its rules to limit the number of exempted calls to three calls to any residential phone from any caller within any consecutive 30-day period. Previously, there was no limit on the number of non-telemarketing robocalls that any caller could make to a residence. Callers are also now required to allow consumers to opt out of these calls.

The non-telemarketing exemptions covered by the Report and Order include: (1) non-commercial calls to a residence; (2) commercial calls to a residence that do not include an advertisement or constitute telemarketing; (3) tax-exempt nonprofit organization calls to a residence; and (4) HIPAA-related calls to a residence.

The Commission notes that the conditions it previously imposed on exemptions for calls made to wireless telephone numbers already satisfy Section 8. As a result, it makes no changes to the exemptions for: (1) package delivery-related calls to a wireless number; (2) financial institution calls to a wireless number; (3) healthcare-related calls to a wireless number; and (4) inmate calling service calls to a wireless number.

The agency does not make any changes to its 1992 ruling that allows cellular carrier calling their own subscribers because this ruling does not fall within the requirements of Section 8 of the TRACED Act.

In addition, in a Fourth Report and Order released on December 30, 2020 in Docket 17-59, the Commission is requiring terminating voice service providers to take additional steps to ensure their networks are not used to transmit illegal robocalls. Voice service providers will now be required to take affirmative actions to stop illegal calls when notified of those calls by the Commission. They will also be required to aid FCC and law enforcement efforts to identify providers that originate illegal calls. In total, voice providers must: (1) respond to traceback requests from the Commission, civil and criminal law enforcement, and the Consortium; (2) take steps to effectively mitigate illegal traffic when it receives actual written notice of such traffic from the Commission; and (3) implement affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls.

To help carriers, the FCC expands its safe harbor to include network-based blocking based on reasonable analytics that incorporate caller ID authentication information designed to identify calls that are highly likely to be illegal, if this blocking is managed with human oversight and network monitoring sufficient to ensure that blocking is working as intended. To ensure each carrier complies, each must be ready to demonstrate the process it uses to manage blocking if the Commission requests such a demonstration.

Finally, in conjunction with the requirements in TRACED, the Commission requires all voice providers that block calls to disclose such blocking, establish a dispute resolution process to correct erroneous blocking, and promptly resolve disputes. To ensure that blocking does not stop calls consumers want to receive, companies are required to immediately notify callers when calls are blocked, provide a list of calls blocked to subscribers on request, and provide a status update on call blocking disputes within 24 hours.

As Chairman Pai noted in a New Release announcing these Orders “Americans are sick and tired of unwanted and illegal robocalls, and today’s separate actions are like a one-two punch to ward them off. Today, we are putting much needed limitations on robocalls to our homes and taking additional steps regarding call blocking that will yield significant improvements for consumers.”

The Orders will become effective 30 days after they appear in the Federal Register.