A coalition of lawful callers, including the insights industry, requested that the Federal Communications Commission (FCC) “exercise care to avoid preventing the transmission of legal calls in its effort to deter illegal robocalls” and “not create the same problem that it is trying to fight.”
On August 9, 2023, the Insights Association (IA) joined with Gallup, Precision Opinion, ReconMR and the Professional Associations for Customer Engagement (PACE) in comments to the FCC, calling upon the agency not to require “terminating [voice service] providers to implement analytics-based blocking, as this would lead to the excessive and inappropriate blocking of lawful calls, exceed the Commission’s statutory authority, and run afoul of the First Amendment.”
IA is the leading nonprofit trade association representing the insights industry. PACE is the only non-profit trade association dedicated exclusively to the advancement of companies that are involved in customer engagement.
Even should the FCC decide “to move forward with some form of analytics-based call-blocking mandate,” the coalition said, “it should refrain from directing terminating providers to block calls based on low average call duration and other factors that are as indicative of lawful as of unlawful traffic. In the Report and Order, the Commission identified low average duration calls [even at high volumes and with low answer rates] as encompassing ‘essential’ communications that should not be subject to greater hindrance than other voice traffic, and it should reaffirm this sound judgment.”
The coalition also urged the FCC to “refrain from taking any action that would suggest its endorsement of labels that reflect a legal judgment, such as ‘scam likely,’” when considering call labeling requirements. “These judgmental labels are often mistaken. As a result, they are harmful to consumers and law-abiding calling parties alike. Informative labels such as ‘telemarketing’ or ‘opinion poll’ are far more likely to be helpful to consumers and pose far less risk of harm to legitimate businesses.”
Finally, the coalition asked the FCC to affirmatively state that the agency “will decline to take enforcement action when it identifies that a provider with an otherwise positive track record of compliance is unknowingly serving a customer who appears to be engaged in unlawful robocalling and the provider takes prompt action to remedy the issue. The Commission already provides an opportunity to cure in several specific robocalling contexts. Giving well-intentioned providers the ability to correct aberrant issues will benefit all stakeholders. We do not wish for the law-abiding service providers on which our members and organizations rely to have their ability to offer service threatened by a solitary misstep, and the Commission should channel its enforcement efforts toward providers and calling parties with a pattern of unlawful behavior.”
The coalition’s comments came in response to a July 10 FCC proposal.
The Insights Association’s advocacy on call blocking and labeling
Howard Fienberg, the Insights Association’s Senior VP Advocacy, noted that the association “has been advocating for the white labeling of research calls for nearly a decade, arguing in comments and meetings with regulators and policymakers that the calls and texts from legitimate actors for legitimate purposes should not be blocked or mis-labeled, and legitimate dialers should have access to a reasonable resolution process when they are unfairly blocked. Unfortunately, the FCC and Congress, under both political parties’ leadership, have proven impervious to the concerns of the insights industry and other legitimate dialers in the calling ecosystem.”
Fienberg continued: “While unfettered call blocking and labeling remains popular across the aisle, IA is hopeful that these coalition comments will help the FCC to make the right decisions for both callers and consumers, particularly since so many of the points raised are well-founded and come from the FCC’s own prior arguments and decisions.”
More from the coalition’s comments on call blocking and call labeling
With the FCC currently only encouraging call blocking and labeling rather than requiring it, "a high volume of lawful traffic is already being blocked" and mis-labeled as spam, including plenty of calls placed for market research purposes.
The FCC should be facilitating, not directly preventing, “transmission of legal calls.”
The FCC proposal to “mandate analytics-based blocking would greatly expand the amount of voice traffic that is blocked for several reasons. First, it would significantly expand the number of terminating providers that block calls. Right now, providers may decline to block traffic, or they may choose to implement call blocking on an opt-in basis. The proposal would take those options away. Second, it would vastly expand the scope of ‘highly likely to be illegal’ calls blocked. Terminating providers would no longer have the option to block more selectively than is permissible to protect valued traffic or experiment with different approaches. Instead, terminating providers would be obligated to default to blocking aggressively to the outer limits of the rule to safeguard against enforcement. Given the vagueness of the ‘highly likely to be illegal’ standard and the Commission’s clear preference for blocking, terminating providers are likely to block aggressively for the understandable purpose of protecting against Commission penalties."
Further, the FCC "does not appear to contemplate giving consumers a meaningful choice. The Commission does not propose prescribing any mechanisms to ensure that consumers are presented with a robust opt-out choice, suggesting a willingness to tolerate a lack of real choice based on the assumption that consumers should be opted out.” The FCC even acknowledged “that under its proposal, many consumers will not invest the time necessary to opt out, whatever their real preference. Without a real choice mechanism for consumers or the providers from which they choose to purchase service, widespread blocking would be inescapable for all but the most motivated consumers."
An unacceptably high number of the vastly expanded number of calls that would be blocked are legal calls. There can be no question that ‘relying on algorithms to categorize billions of phone calls will lead to some false positives.’ The Commission’s safe harbor against liability for blocking is necessary precisely because some lawful traffic will be blocked. As discussed below, several of the factors that the Commission allows terminating providers to use in analytics-based blocking are not demonstrative of unlawful calls. For instance, while the Commission previously identified low average call duration as a permissible consideration in analytics-based blocking, the Commission recently acknowledged that short-duration calls include ‘essential’ communications such as ‘emergency notifications, appointment reminders, or other important notifications.’”
Under a mandatory call blocking by default regime, some voice service providers “may feel emboldened to block lawful traffic for inappropriate motives, such as to harm a marketplace rival or based on an objection to the viewpoint of the calling party. Thus, the result of the Commission’s proposal would be vastly increased blocking of lawful traffic. Cutting off calling parties and call recipients from lawful communications would not serve the public interest. Calling parties conveying lawful calls of the sort that would be blocked are likely to give up on calling, and providers and other businesses serving such calling parties may be forced out of business. This outcome would be inconsistent with the Commission’s fundamental mission.13 Although combatting unlawful traffic is a worthwhile goal, in doing so the Commission should not—as it aptly stated in the Report and Order— ‘throw the baby out with the bathwater.’”
Instead of the proposed rules, the coalition suggested that the FCC “instead adhere to its sound reasoning” in a May 2022 report and order (the Gateway Provider Order) in which it decided against mandating call blocking.” The FCC has also “discussed that an analytics-based blocking mandate would require a more strict definition of the circumstances in which blocking is necessary, which ‘may be counter-productive and prevent providers from responding to evolving threats’ and ‘could potentially provide a road map bad actors could use to circumvent blocking.’” The FCC “also identified the ‘need for truly robust redress mechanisms for callers when the blocking is not initiated by the consumer,’ which still do not exist.” In the experience of the coalition, “existing redress mechanisms do not function adequately to protect the rights of calling parties and originating providers.” Therefore, the coalition reiterated, the FCC “should adhere to its prior reasoning and decline to mandate analytics-based call blocking.”
Instead, the Insights Association and the rest of the coalition urged the FCC to "require all voice service providers to block calls using a reasonable" do-not-originate (DNO) list, "keep working to provide transparency and effective redress to callers whose calls are blocked based on analytics," including by adopting "an appropriate SIP code for terminating providers with IP networks to notify callers that their calls have been blocked," and recognizing “that current redress options available in the marketplace are not working adequately."
That last recommendation is particularly poignant. “Calling parties have little choice but to purchase solutions to prevent improper blocking and mislabeling from the very same analytics providers that make blocking and labeling decisions” which gives providers “a strong incentive to overblock and mislabel since they sell both the disease and the cure. Paying analytics providers to resolve issues can cost medium-sized firms hundreds of thousands of dollars a year.” These problematic market dynamics deprive consumers of “calls that they may want” and of their chance to impact the development of products, services and ideas they want or need, while “calling parties cannot afford to pursue opportunities to reach members of the public who may wish to hear from them” or from whom they may wish to hear. The FCC should, the coalition said, “demand better.”
The FCC’s proposed rules also mistakenly equate “legal authority to allow analytics-based blocking with legal authority to mandate analytics-based blocking. As the coalition comments explain in detail, “the two are fundamentally different.”
The coalition noted that the FCC “has identified many bases for ascertaining which calls are ‘highly likely to be illegal’ that are better than call length, including a large volume of complaints related to a suspect line; correlation of network data with data from regulators, consumers, and other carriers; and comparison of dialed numbers to the National Do Not Call Registry. In contrast to call duration or other considerations such as answer rate and call volume, these factors genuinely correlate to potential forms of illegality.”
Calls tarred with “judgmental labels such as ‘scam likely’” can harm consumers “and calling parties alike. Consumers are likely to decline calls that some may wish to receive if they had been armed with information rather than what amounts to an admonition not to answer. Businesses struggle to rebuild their reputation as lawful callers when they have been mislabeled as fraudulent or scam callers” from which there is “no practical, cost-free, and 100% effective permanent redress option available.”
Thus, the coalition said, the FCC should avoid “any action that would encourage the use of judgmental labels such as ‘scam likely’ or ‘fraud risk.’ In contrast to judgmental labels, informational labels such as ‘survey’ or ‘telemarketing’ can provide consumers with informed choice when they consider whether to pick up the phone. These labels do not pose the same risk of harmfully damaging businesses’ reputations. Moreover, because the descriptors are factual rather than judgmental, it may be easier for calling parties to identify and obtain redress for errors without the need for legal disputes.”