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FCC Clarifies Robocall Rules

A divided FCC voted Thursday to prevent unwanted robocalls and "robotexts," spam and telemarketing calls to wireless phones, making it clear carriers can help their subs block those unwanted communications, including ones that originate as Internet messages.

The FCC majority voted to clarify that texts are the same as calls, including Internet-to-phone texts. Consumers have the right to revoke previous consent to robocalls at any time and for any reason. Blocking applies to numbers that have been reassigned, though the FCC is giving callers one call to find out whether it has been reassigned before being in violation. App providers will not be liable for the calls.

The vote, on declaratory rulings and an order, was a divided one, even among the Democratic majority. Commissioner Ajit Pai dissented, saying it would leave consumers worse off and "opens the floodgates to more TCPA litigation against good-faith actors" and dramatically expand the reach of the Telephone Consumer Protection Act. He suggested that the change would make tablets and smart phones robodialers. Pai also did not like the carveout for inmate calls, which he said would open the door to more robocalls and provide a lawful way to get around telemarketing limitations.

Commissioner Michael O'Rielly called the process of reaching the decision, from which he strongly dissented in part, a new low, saying he had been deceived to produce a slanted document and the future would not trust "certain" FCC officials henceforth. He said the order was a farce. He said the decision would make it harder for consumers to get information they want and need.

Commissioner Jessica Rosenworcel was not entirely happy either, dissenting from a carveout from the blocking rules for banks, healthcare and pharmaceutical companies (there is an exemption for financial service and healthcare calls, though not healthcare telemarketing or debt collection).

Rosenworcel said: "I do not understand why for some sectors of the economy this Commission gives the green light for more robocalls when consumers want a red one. The Telephone Consumer Protection Act is straightforward: it requires a company to get a consumer’s prior express consent before making robocalls to their number.  But today we do away with this requirement for big banks, healthcare providers, and pharmaceutical companies.  They get a loophole.  The Order couches this exemption in high-minded rhetoric about informing consumers about upcoming healthcare appointments and threats to their credit. But despite this rhetoric, the result is obvious—consumers can expect to receive more robocalls from healthcare providers and banking institutions. Moreover, this puts the Commission in the ridiculous business of policing speech made in these calls and itemizing the number of calls permitted by these entities."

O'Rielly supported the carveouts for financial service and healthcare.

Political robocall calls did not get a carveout. An FCC staffer said that noone had petitioned for that exemption.

Rosenworcel also said she was worried that school calls about student attendance were getting swept up in the robocall issue. Chairman Tom Wheeler said he shared that concern. Rosenworcel, in her published statement, called it a "rollicking effort and a contentious proceeding."

Wheeler said the item was necessary because technology had outpaced TCPA, which in 1991 applied to live people making cold calls, which was now machines making an "explosion" of calls and creating a loophole for automatic equipment, a loophole he said the FCC had now closed. He said there were sensible exceptions, including banks about fraud or healthcare reminders. He said the item was about consumers being put in control, including being able to ask phone companies to block calls. He said phone companies had balked, saying the FCC would not allow it. He said the item cleared that up.

Wheeler said that if anyone has issues with lawsuits, they should take it up with Congress, which authorized those private rights of action.  No more unauthorized calls, said Wheeler. “Stop it, and stop it today.”

As B&Creported last month, Wheeler has been looking to close what he sees as "loopholes" in the Telephone Consumer Protection Act (TCPA) by issuing rulings on more than 21 items—19 requests for declaratory rulings, one for clarification, and a petition for rulemaking—for clarity on how it interprets the TCPA regarding wireless phones, though some of the changes will apply to wired phones as well. Some of those questions had come from carriers and others wondering if they were allowed to provide blocking technology given their common carrier requirement for completing calls.

Complaints about violations of the Telephone Consumer Protection Act (TCPA) are the FCC's most numerous. More than 215,000 complaints last year alone, the FCC has said. App developers and others have sought input on just what consumer protections square with the law.

The declaratory rulings make it clear that no carrier can "block, choke, reduce or restrict" access, but carriers are empowered to help consumers block VoIP robocalls. The official said it removes a key question from carriers and some state attorney generals about whether carriers could help with this type of blocking. The FCC proposal says there is no barrier to filtering out unwanted numbers.

The FCC is saying that the Title II obligation of telecoms to complete calls is not a legal barrier to a consumers ability to use a call-blocking technology. If the consumer requests that technology from the carrier, the carrier can provide it.

Wireline carriers would also be able to offer the blocking technologies.

The rulings:

1. Make it easier to get off a robocall list. Any reasonable means of revoking consent would have to be accepted, like an oral expression, for example.

2. Allow for robocall-blocking technologies.

3. Require companies to actively purge their lists of old phone numbers, so holders of reassigned numbers aren't bombarded with calls.

4. Define an autodialer in a technology-neutral manner.

5. Provide carveouts for robocalls that can be made without consent if they are ones that are free or are alerting consumers about financial or medication reminders, but not telemarketing or debt-collection calls.

The rules will be enforced both through a consumers' private right of action—as in to sue—callers that violate TCPA and the commission's rules, which Pai was suggesting meant a potential flood of suits.

The FCC's Enforcement Bureau has also fined companies millions for TCPA violations and will continue to be vigilant, FCC officials have said.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.