On November 24, the FCC released a wide-ranging public notice seeking comment on a September 9, 2014, letter from the National Association of Attorneys General (NAAG), purportedly written “on behalf of the millions of Americans regularly receiving unwanted and harassing telemarketing calls.” The letter, signed by a bipartisan group of 39 AGs led by Chris Koster, the AG of Missouri, and Greg Zoeller, the AG of Indiana, raises issues relating to the legality and desirability of allowing telephone providers to implement call-blocking technology as a means of addressing unwanted telemarketing calls.

In its letter, NAAG references a July 2013 hearing before the Senate Subcommittee on Consumer Protection, Product Safety, and Insurance, at which witnesses from CTIA-The Wireless Association and US Telecom testified that “legal barriers prevent carriers from implementing advanced call-blocking technology to reduce the number of unwanted telemarketing calls.” In fact, it is true that the FCC has long prohibited call blocking in particular contexts as an “unjust and unreasonable practice” under the Communications Act of 1934, as amended.

Specifically, NAAG’s letter requests the FCC’s view in three areas:

  1. What, if any, legal and/or regulatory prohibitions bar telephone carriers (and VOIP service providers) from implementing call-blocking technology? Would the answer be any different if the companies’ customers were to “opt-into” use of the technology (either as a free service or for a fee)?
  2. According to US Telecom at the July 2013 hearing, telephone carriers can and do block “harassing and annoying” telephone traffic at their end-user customers’ request, but only for a “discrete set of specific phone numbers.” Could telephone carriers, at a customer’s request, legally block certain kinds of calls (for example, telemarketing calls) if technology could identify incoming calls as “originating or probably originating” from telemarketers?
  3. US Telecom describes the FCC’s position as being one of “strict oversight in ensuring the unimpeded delivery of telecommunications traffic.” Is this characterization accurate? If so, on what basis does the FCC claim that telephone carriers may not “block, choke, reduce or restrict telecommunications traffic in any way”?

In addition to seeking comment on these particular questions, the Commission, in its Public Notice, states that it is interested in hearing about what call-blocking technologies are available or under development in the United States and internationally, how they work, how these details should inform the Commission’s analysis, and whether differences in how specific technologies work might produce different outcomes under the law.

In its Notice, the FCC acknowledges having said in the past that, “‘except in rare circumstances,’ it ‘does not allow carriers to engage in call blocking.’” However, it then goes on to state that “it has not directly held that blocking calls upon customer request is unlawful,” and that “[i]ndeed the Commission has recognized ‘the right of individual end users to choose to block incoming calls from unwanted callers’” in certain circumstances.

At this juncture, the Commission seeks comment, among other things, on whether and to what extent its prior precedent and applicable statutory provisions regarding call blocking applies to call-blocking technologies now on the market or under development. And – most importantly, perhaps – the Public Notice asks: “How should the Commission reconcile the obligation of voice providers to complete calls with protecting consumers from unwanted calls under the Telephone Consumer Protection Act (TCPA)?”

One can be quite confident that not only will the pro-consumer “public interest” lobby be out in force on this one – and probably with substantial Congressional support – but also that companies that produce and market call-blocking technologies, such as Nomorobo, Call Control and Telemarketing Guard (identified by NAAG in its letter), will be pushing hard. For this reason, among others, this issue should be of grave concern – not only to all who market via the telephone, but also to those who use the phone to reach their customers for other purposes, for example, in attempting to collect a debt.

Have you had experience with your lawful outgoing calls (debt collection, informational, even emergency, as well as telemarketing, calls) being blocked by the recipient’s carrier? If so, you might want to share that experience with the FCC or write to the Agency about the impact this issue could have on your business, or the price of your products or services or your ability to communicate important information to your customers. Comments are due December 24, 2014, and reply comments are due January 8, 2015. If you fall into a potentially affected category, you should consider getting involved.

In other, but related news: it appears that the attorneys general have recently been a very busy bunch! Not only have 39 of them weighed in on blocking technology at the FCC, but – virtually simultaneously – 38 attorneys general, some the same, some different, again through NAAG, also recently urged the FTC, in its planned update of the Telephone Sales Rule, to prohibit the use of pre-acquired account information (to reflect the Restore Online Shoppers’ Confidence Act). The AGs contend that prohibiting such information would ensure that a consumer has consented to a given transaction.

NAAG’s letter to the FTC also urges that the Agency better address negative option telemarketing because, the AGs contend, that practice often leads to confusion and “outright deception.” Finally, the AGs argue that telemarketers should be required to create and maintain records, and that the use of money transfers and certain other payment methods should be banned.