Yes, really.
Robocalls are public enemy number one, yet Federal Communications Commission Brendan Carr has boasted an approach of “delete, delete, delete” to the scant regulations that are in place to police the billions of robocalls Americans receive every month. To be sure, the framework for regulating robocalls, texts and unwanted telemarketing solicitations is complicated and requires a new approach that incentivizes providers to stop profiting from them. But Carr’s FCC is unwilling to take such a bold step against major carriers, and has instead proposed a significant rollback to the existing regulations that allow individuals and small businesses to stop unwanted telemarketing solicitations.
What is Carr’s FCC proposing?
The FCC announced a proposal to “simplify, streamline, or eliminate certain outdated robocall rules” on its agenda for an open commission meeting on October 28. Buried near the end of a lengthy proposal for unrelated rule changes, starting at paragraph 97, the FCC categorizes “company specific do-not-call rules” as “older rules that may no longer be necessary.” But these company specific requirements are the only rules that force telemarketers to stop calling when consumers tell them to stop.
The current regulations in Paragraph 97 (47 C.F.R. § 64.1200(d)) require companies that use telemarketing to maintain their own do-not-call lists in addition to complying with the national DNC registry. This means that a consumer has the power to tell a company that they do not want to receive their telemarketing calls – and the company has to honor that request for five years.
Another regulation under attack in this proposal is the requirement to provide an automated opt-out mechanism for artificial voice and prerecorded telemarketing calls. (See Paragraph 100, referencing 47 C.F.R. § 64.1200(b)(3)). This includes invasive robocalls like unasked-for reminders, surveys, and customer satisfaction robocalls – all of which clog our lines and jeopardize the integrity of our nation’s communications system. Having an automated opt-out mechanism is like a “click to cancel” for robocalls – removing this requirement will remove the self-effectuating tool that consumers have to stop unwanted junk calls. Critically, this provision also protects small business cell phones, whose owners have been extremely vocal with the FCC about the impact of robocalls on their ability to conduct business.
If the company repeatedly violates these requirements, they are liable under the Telephone Consumer Protection Act for statutory damages, attorneys’ fees and costs. The TCPA was designed by Congress to have a powerful compliance incentive for companies to stop harassing consumers and crowding our telecommunications system with junk calls. Reducing sellers’ liability exposure under the TCPA removes one of the few effective safeguards Americans have against robocalls.
Why do we need these regulations?
Carr’s FCC claims that these provisions are unnecessary in light of the National DNC list, but this is false. Even if a consumer has registered their number on the National DNC list, many callers are exempt from the National DNC rules. For example, if a company has an “established business relationship” with a subscriber, they can ignore the national DNC provisions and call that person for eighteen months. The “relationship” is loosely defined as having made a purchase from the business or even a mere inquiry into their products (which allows for three months of calls).The company-specific rule covers this gap and gives consumers the ability to forestall those endless calls, even if they’ve done business with the company. As corporations merge and have ever expanding affiliates, these “relationship” exemptions will become broader and broader, weakening the ability of consumers to control their incoming telephone calls.
Similarly, the automatic opt-out provision is one of the few ways that individuals can stop unwanted calls on their own. It does not require a lawsuit, an injunction, government intervention or some other drastic, expensive measure. It is an efficient way for individuals and small businesses to receive the calls they want to receive – and block the ones they don’t.
The Commission will consider whether to move forward with this and many other proposals on October 28. The scourge of robocalls is one of the rare issues that Americans universally agree should be vigorously addressed. It is hard to imagine that any individual or small business would support the FCC’s approach of reducing the tools to police them.