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December 2014 TCPA Compliance Monitoring Report
Note: As you will see in this month’s TCPA Monitor, a number of petitioners have already filed “me too” waivers seeking the same waiver of the FCC’s opt-out rules for solicited fax ads that the FCC granted for 24 petitioners in October. If you or your company would like help seeking a waiver of the FCC’s opt-out rules for solicited fax ads by the April 30, 2015 deadline, please contact, Jane Wagner: jlw@commlawgroup.com – 703-714-1321 – Linda McReynolds: lgm@commlawgroup.com – 703-714-1318 – or Robert Jackson: rhj@commlawgroup.com– 703-714-1316.
Growing concern among state Attorneys General about unwanted telemarketing calls could cause significant changes for telemarketers and telecommunications providers alike. On September 9, thirty-nine Attorneys General (including the Attorneys General of Washington D.C., Guam, and Puerto Rico) sent a letter to the FCC requesting an explanation of “telephone carriers’ legal ability to implement call-blocking technology,” and the FCC released a Public Notice seeking comment on the issues raised in the letter on November 24. The deadline for comments is December 24, 2014, and the deadline for reply comments id January 8, 2015.
Specifically, the Attorneys General asked:
- What legal and/or regulatory prohibitions, if any, prevent telephone carriers form implementing call-blocking technology such as NoMoRobo, Call Control, and Telemarketing Guard? Does the answer change if the telephone companies’ customers affirmatively “opt into” the call-blocking technology (either for a fee or as a free service)?
- At a customer’s request, can telephone carriers legally block certain types of calls (e.g., telemarketing calls) if technology is able to identify incoming calls as originating or probably origination from a telemarketer?
- US Telecom describes the FCC’s position as “strict oversight in ensuring the unimpeded delivery of telecommunications traffic.” Is US Telecom’s characterization of the FCC’s position accurate? If so, upon what basis does the FCC claim that telephone carriers may not “block, choke, reduce or restrict telecommunications traffic in any way”?
In addition to the questions asked by the Attorneys General, the Commission seeks comment on how its precedent may impact the analysis of the issues raised by the Attorneys General. For example, in 1996, the Commission required local exchange carriers to provide blocking services to business customers for collect or third-party billed calls in response to toll fraud faced by aggregator telephones. The Commission also seeks comment on how effective call blocking technologies are. For example, it asks how frequently the technology produces false positives (blocking a number that should not have been blocked) or false negatives (failing to block a number that should have been blocked).
Permitting telecommunications providers to block telemarketing calls could significantly alter the current telecommunications marketplace. While allowing telecommunications providers to block telemarketing calls could open a new service line for telecommunications providers, or simply improve customer experience if the provider includes the service at no cost, the Commission could place additional burdens on telecommunications providers that block telemarketing calls. For example, the Commission might require a provider to demonstrate that its service does not produce a significant number of false positives or false negatives.
Allowing telecommunications providers to block telemarketing calls could also significantly impact the telemarketing industry. Telemarketers would likely want to know how and why a number gets blocked. Telemarketers also could push the FCC to prohibit blocking certain types of telemarketing calls, whether those include lawful telemarketing calls, calls on behalf of charitable organizations, or research and other public interest oriented calls. If the Commission implements broad blocking rules, telemarketers will likely challenge the rules; however, carving out exemptions to the rules for certain telemarketing uses could complicate both the interpretation of the rules and the technical implementation of the rules by telecommunications providers.
If you have any questions about how the blocking of telemarketing calls could impact your business or you would like to file comments in response to the FCC’s Public Notice, please contact, Jane Wagner: jlw@commlawgroup.com – 703-714-1321 – Linda McReynolds: lgm@commlawgroup.com – 703-714-1318 – or Robert Jackson: rhj@commlawgroup.com – 703-714-1316.
