In its ongoing efforts to tackle the proliferation of illegal or unwanted “robocalls,” the FCC has released a draft order that would authorize all providers of voice services to offer to their customers call blocking as a default service. The FCC believes that this will dramatically increase the use of blocking applications. The FCC is also proposing to allow voice providers to block certain calls that are not properly authenticated under the STIR/SHAKEN call authentication framework that is currently being implemented by larger carriers.
The draft order and notice of proposed rulemaking was released on May 16 and is scheduled to be considered by the FCC at its upcoming June 6, 2019, open meeting. Interested parties have two weeks from its release date to propose changes to the draft order and notice, which are summarized below. The draft order can be found here.
Blocking By Default
A number of voice providers currently offer call blocking applications to their customers, but the customers must affirmatively request, or opt-in, to use them. Consumer groups and others have argued the requirement to opt-in is limiting the use of blocking applications and have called on the FCC to allow voice providers to offer call blocking as a default and for free. If customers do not want to have calls blocked, they would have to opt-out.
In this draft order, the FCC would authorize voice providers to offer default call blocking with an opt-out right. By blocking, the FCC means stopping the call from reaching the called party so that the phone never rings, automatically routing the call to voicemail, or some type of screening. Though not required to offer these services, the FCC encourages voice providers to begin offering them immediately and states its expectation that the service would be provided for free.
Voice providers offering call blocking tools must provide sufficient information so the consumers can make an informed choice. Providers should clearly disclose the types of calls that may be blocked, the risks of blocking calls that consumers might want, and how to opt out of the service.
The call blocking service should be based on reasonable analytics designed to identify unwanted calls. The FCC lists various indicia of unwanted calls, such as calls based on large bursts of calls in a short time frame, low average call duration, low call completion ratios, invalid numbers placing a large volume of calls, among others. Voice providers must also ensure that emergency calls are not inadvertently blocked.
Blocking All Calls Except Those on Consumer Contact Lists or Other White Lists
The draft order would also allow voice providers to block all calls except those that the consumer specifies, such as calls from persons on the consumer’s contact lists. Unlike the general call blocking described above based on analytics, consumers would have to affirmatively opt into this service. This is to ensure consumers understand that they will be sharing their contact lists with their voice provider.
Proposed Safe Harbor for Blocking Unauthenticated Calls
The FCC is also seeking comment on allowing voice providers to block certain types of calls that are not properly authenticated. Large carriers have begun to implement a call authentication framework known as STIR/SHAKEN. The framework operates by having originating carriers electronically sign a certificate attesting to the authentication of the number. The framework is designed to prevent unlawful number spoofing where a scammer would insert a local number or a government agency name and number to prompt the called party to answer the call. Although some larger carriers have begun to implement the framework, the governance structure and certain standards are still under development. One open question, for example, is how to present call authentication information to the called party.
The FCC proposes to allow voice providers to block calls that “fail” the authentication protocol. By fail, the FCC means that the call authentication information has been “maliciously altered or inserted” in an attempt to inappropriately spoof another number or circumvent the protections the framework is designed to provide. The FCC seeks comment on this proposal and other circumstances where blocking would be permitted.
Importantly, the FCC would not permit blocking based on the level of attestation. The framework contemplates three levels of attestation based on the originating voice provider’s level of confidence that the calling party is authorized to use the number that would be presented in the Caller ID. The proposed safe harbor would not allow blocking based on one of the two lesser levels of attestation. Also, because the call authentication framework will not work in all cases, for example, where the call is not originated and transmitted in IP format and is still being rolled out, the safe harbor would only apply for calls where the authentication framework has been implemented and is available for use.
The FCC also seeks comments on ways to help ensure that legitimate calls are not blocked. This might include requiring notification that a call is being blocked and a process to unblock legitimate calls.
As noted, the FCC is slated to consider this order and notice of proposed rulemaking at its June 6, 2019, open meeting and interested parties have two weeks to propose changes. If the order is adopted, as is likely, it would become effective immediately. If the notice of proposed rulemaking is also adopted, as expected, the FCC will also establish a comment period, likely providing 30 days from the date it is published in the Federal Register to file initial comments.
It is critically important that the FCC reasonably balance the desire of consumers to avoid illegal or unwanted calls while not blocking legitimate, wanted calls. The issue is thus important not just for voice providers, but for companies that make outgoing calls to their customers, and to consumers generally.
This document is intended to provide you with general information regarding an FCC draft order that would expand the ability of telephone companies to offer call blocking services to customers. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.