You May Get Some More Robocalls, Thanks to COVID-19 – But Maybe Not So Much

On March 25, 2020, we blogged that the Federal Communications Commission ("FCC") had issued a Declaratory Ruling under the Consumer Protection Act ("TCPA"), that the coronavirus pandemic constitutes an "emergency" which invokes a statutory exception permitting certain kinds of robocalls to be made and texts sent without the consent of the recipient. Since that date, the FCC has taken two sharp actions to curtail robocalls; but then it has also invited comments on whether it should grant another exception allowing more COVID-19 related calls. How many calls will ultimately be allowed, how many will be blocked, and how many will escape blocking all remain to be seen.

COVID-19 Robocalls. To come within the initially approved exception to the requirement for consent from the recipient, a call must be made directly by, or by a person acting under the specific direction of, a hospital, health-care provider, state or local health official, or some other governmental official. The content of the message must consist solely of information made necessary because of the COVID-19 outbreak and directly related to the imminent health or safety risk arising from the outbreak.

SHAKEN/STIR. The next thing the FCC did was to order all originating and terminating telephone companies to implement the new "SHAKEN/STIR" technology, designed to identify, and to facilitate blocking of, likely spam robocalls on the Internet Protocol ("IP") portions of their networks. For details, check out a blog post written by our colleague, Seth Williams

Warning to Gateways Transporting Robocalls: Many robocalls originate from outside the United States and enter our domestic telephone network through international gateways that are not operated by the major carriers. The FCC and Federal Trade Commission ("FTC") recently warned these gateways that if they did not stop delivering coronavirus-related spam calls, the agencies would take strong action. Apparently nothing happened, because on April 3, the FCC ordered three named gateway providers to cut off spam calls within 48 hours, or else all domestic carriers would be authorized to block all calls passing through these gateways. The USTelecom trade association was asked to ask its members to implement blocking after 48 hours. Among the calls entering through the gateways were calls originating in the Philippines offering a non-existent "free test kit" and calls originating in Pakistan offering cleaning services falsely claiming to help fight COVID-19. Although forty-eight hours have passed, we don't know yet whether traffic through the gateways is being blocked.

Banking Calls: Lest you are tempted to give a sigh of relief that all robocalls might soon substantially abate, the FCC has invited comments by May 6 on a petition by the American Bankers Association and other financial associations asking that calls or texts placed by banks, credit unions, and other financial service providers using automated dialing systems or prerecorded or artificial voices, on matters relating to the COVID-19 pandemic, should be deemed "emergency calls" under the TCPA and so not require the express consent of the called party.

So the FCC keeps fighting robocalls, but governmental and private organizations dealing with COVID-19 want to make more robocalls. Will the overall volume subside, will only the call content change, or will technology fail to foil the evil-doers? Check with your local casino to find out whether bets are being taken on the outcome.