For many consumers, answering a phone call from an unknown number has effectively turned into a gamble. Is it a potential new client? A medical emergency? Or, more likely, is it an incredible offer-to-stay-at-a-Caribbean-resort-of-your-choosing-please-hold-for-a-representative?
Not surprisingly, no issue generates more complaints at the Federal Communications Commission (FCC) and the Federal Trade Commission than robocalls – according to one estimate there were 47 billion illegal and unwanted calls in 2018. In response, the FCC last week released a Declaratory Ruling and Third Further Notice of Proposed Rulemaking (CG Docket No. 17-59, WC Docket No. 17-97) clarifying that voice service providers may offer consumers call-blocking tools through an opt-out process rather than an opt-in basis, as is typically done today. The FCC issued this clarification to address concerns that the majority of consumers are not requesting available call-blocking services.
Alongside this growing chorus for more robust call blocking, however, are concerns by legitimate callers of over-blocking. Calling parties fear that the adoption of widespread call blocking may result in unintended consequences as call-blocking tools rely on analytics to determine when calls are likely to be illegal, spam or telemarketing. The challenge is that legitimate calls may share some of the same analytical tendencies (e.g., a high volume of short duration calls originating from a toll-free number), resulting in the blocking of wanted calls, such as credit card fraud notifications, flight delays or school closing alerts.
To this end, the Declaratory Ruling clarifies when voice service providers may implement call-blocking programs, what other types of call-blocking tools they may offer to customers, and what options, if any, calling parties have to challenge over-blocking.
a. Opt-Out Method
First, the Declaratory Ruling clarifies that voice providers may implement call-blocking programs to subscribers on an opt-out basis. Many voice providers only offer call-blocking services on an opt-in basis, requiring subscribers to specifically request these services. However, either because of a lack of awareness of options, or just general inertia, the vast majority of subscribers have not opted to use such services.
And rather than set specific rules for which calls are blocked, the Declaratory Ruling permits calls to be blocked based on “any reasonable analytics designed to identify unwanted calls.” Such “reasonable analytics” can be based on a broad combination of factors, including: callers with a large number of complaints, large bursts of calls within a short time period, calls with low average call duration, invalid numbers placing large numbers of calls, sequential dialing patterns, and other indicia of illegal calling. Regardless, providers must apply such analytics in a “non-discriminatory, competitively neutral manner.” Continue reading →