Safe Harbor Order Could Help Carriers Kick Robocalls to the Curb
On July 17, the Federal Communications Commission (FCC" or Commission") released its latest Report and Order and Further Notice of Proposed Rulemaking (Order") attempting to stop unwanted and illegal robocalls. The Order creates a safe harbor" (i.e., legal protection from liability) to protect carriers that block calls based on reasonable analytics or other permissible criteria. It also seeks to ensure that carriers do not erroneously block wanted calls. In the Further Notice of Proposed Rulemaking, the Commission broadly asks whether it should expand the scope of permissible blocking, the safe harbor for carriers that block robocalls, or the remedies available to consumers who want to receive calls that are being blocked.
A major sticking point in suppressing illegal and unwanted robocalling has been whether carriers should receive legal protection against governmental and civil liability for their attempts to block unwanted calls using permitted methods, whether intentionally or by mistake. Throughout its history, one of the Commission's cornerstone principles has been that any caller across the country should be able to place a call that will be connected to the intended recipient of that call, as well as to receive calls made to him or her. While most callers may not worry about their call being completed, failure to complete calls to rural exchanges with high terminating access charges remains an issue that the Commission has taken steps to improve as recently as 2018. Therefore, allowing carriers intentionally to block calls is something of a sea change for both the Commission and carriers.
Nonetheless, the scourge of unwanted and illegal robocalls has helped create a consensus that blocking calls is appropriate under certain circumstances and that carriers should not be liable for good faith blocking attempts. To encourage carriers to undertake blocking of unwanted and illegal calls, the Order creates a safe harbor from liability for the unintended or inadvertent blocking of wanted calls where terminating voice providers block based on reasonable analytics that include caller ID authentication information and the consumer is given the opportunity to opt out." In addition, the Order creates a safe harbor allowing carriers to block calls from bad-actor upstream voice service providers" Blocking calls from bad actors will allow carriers to refuse to connect calls from another carrier that is notified it is carrying banned traffic by the Commission and fails to implement effective mitigation measures for such traffic.
Along with the creation of a safe harbor for call blocking, the Order requires carriers to take all reasonable efforts to ensure that calls from PSAPs (Public Safety Answering Points) and government outbound emergency numbers are not blocked." Determining which originating numbers should never be blocked will be a challenge because those numbers must be kept secret and out of the hands of bad actors that spoof originating numbers. The Order also requires that carriers create a single point of contact for callers, other service providers, or customers to report blocking errors. Carriers must provide this point of contact at no charge to callers or other voice service providers, and carriers must promptly stop blocking calls if they determine calls from the blocked number should not have been blocked.
The Order also seeks further comment on refining how and when carriers should be permitted to block calls. It asks if there are other instances in which carriers should be permitted to block calls that aren't currently covered by the Commission's recent call blocking decisions, and if so, the Order seeks comment on whether the Commission should extend its safe harbor to other types of blocking. Finally, the Order asks whether the Commission should establish a specific process by which adversely affected callers can verify the authenticity of their calls to stop them from being blocked.
As of publication, the Order has not been published in the Federal Register. When it is, commenters will have 30 days to file comments and a further 30 days after the comment deadline to file reply comments. We will post the comment dates on CommLawBlog.com when they are announced.
UPDATE:
On July 31, 2020, a summary of the Call Blocking Fourth Further Notice was published in the Federal Register. Comments are due August 31, 2020, and reply comments are due September 29, 2020.