Will New FCC Chief Undo Progress On Combating Robocalls?

Image courtesy of Joe M. O'Connell

You hate robocalls. We hate robocalls. Probably even our pets hate robocalls. They are a scourge on modern communications. Even new FCC Chair Ajit Pai hates these auto-dialed, pre-recorded nuisances, but his history on the subject has us wondering if he’ll continue the FCC’s work in curbing robocalls or give in to businesses who want to use them to sell us things.

The Good, The Bad, & The Robo

There are two kinds of robocalls, really: legal ones and illegal ones. Both are incredibly annoying, but each requires a different tactic to fight.

U.S. regulators can’t stop a fraudster overseas from spoofing a phone number and trying to use software to mass-dial millions of American phones. Blocking that kind of spam needs to happen on the receiving end, and so the FCC, phone companies (including mobile and cable carriers), and start-ups have been slowly rolling out apps and other tools to help consumers build whitelists of allowed contacts and start blocking known scam calls.

But regulations can limit the number of robocalls that are legally permissible, and they have. There’s a law called the Telephone Consumer Protection Act (TCPA) that limits and governs telemarketing and robocalls. Among other things, it prohibits non-emergency robocalls to cell phones, unless you give prior consent (except for debt collectors trying to recoup money owed to the feds). It also limits unsolicited calls to landlines and fax machines (it’s from 1991) and led to the creation of the Do Not Call list.

Banks Make Pro-Robocall Case

Chairman Pai, however, is seen as a business-friendly Commission leader who is not only happy to revisit old rules, but has expressed a desire to “fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.”

That’s why some in the financial sector are hoping Pai will take a second look at restrictions that limit them from annoying customers with automated, unwanted calls.

Last week, the National Association of Federally-Insured Credit Unions (NAFCU, to its friends) sent Pai a letter [PDF] asking the FCC to revisit TCPA modernization to, in essence, bother you more.

In the letter, B. Dan Berger, CEO of the trade group, argues that existing regulation “does more harm than good by making it extremely difficult for credit unions to contact their members about potentially fraudulent activity, identity theft, and data breaches.”

Although millions of banking customers every day manage to receive text, email, and automated calls about exactly those things, the letter goes on.

“The TCPA should protect, not harm, consumers,” Berger writes. “NACFU hopes that you [Pai], as a proponent of heightened transparency, will lead the FCC into an era of transparent modernization of the TCPA.”

NAFCU is not alone in wanting the FCC to act. Trade industry publication American Banker reports that the Consumer Bankers Association currently feels that “litigation risk is deterring banks from communicating with their customers.”

The CEO of Discover Financial Services echoed the sentiment to American Banker, saying that, “We’ve had to spend a lot of money and go to a lot of trouble” to handle debt collection, which presumably would be cheaper and easier if they could just spam everyone’s phones.

The Business-Friendly Chairman

Pai, meanwhile, seems likely to respond favorably to the banking industry on this one — but it’s not a guarantee.

In June, 2015, the FCC updated its rules regarding robocalls and spam texts. Among the topics tackled in that order [PDF] were clarifications about consumers’ rights to opt-out, consumers’ rights to use blocking or “do not disturb” technology, and updates to the definition of an “autodialer” to account for VoIP software existing.

At the time, Pai heaped a scathing dissent [doc] on the order, even while admitting that he hated robocalls as much as any of the 96,000 people who filed actual complaints with the FCC in 2014.

“It’s no surprise the TCPA has become the poster child for lawsuit abuse,” Pai said at the time. “The TCPA has strayed far from its original purpose, and the FCC has the power to fix that.”

“Instead,” he continued, “the Order takes the opposite tack. Rather than focus on the illegal telemarketing calls that consumers really care about, the Order twists the law’s words even further to target useful communications between legitimate businesses and their customers. This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.”

“In all,” he concluded, “the Order is likely to leave the American consumer, not to mention American enterprise, worse off. That’s not something anyone should support.”

The Champion Of Consumer Protections?

However, a year later, in August, 2016, the FCC issued another order about robocalls. This time around, the FCC clarified existing law, confirming that, basically, any federal body, or company working on its behalf, is exempt from rules restricting robocalls so long as the communication is about “government business.”

The FCC then again issued rules clarifying just how much the feds were allowed to bug you. But despite earlier arguing against restricting robocalls, Pai was also not in favor of this particular expansion of them, and again dissented strenuously. In his remarks [PDF], he said the FCC’s approach was, “unlawful and makes a dog’s breakfast of the TCPA.”

“I do not believe the federal government should be bestowing regulatory largesse upon favored industries such as federal debt collectors,” Pai said at the time.

He continued by laying out a legal argument that consumer advocates seeking to limit annoying robocalls also agree with, in part. Basically, the argument goes that Congress was vague when it created the loophole that allowed the feds to bug you by robocall, and clarification was needed. The FCC’s Order clarifies that businesses and people may be a “person” whose ability to robocall you is limited under the law, but that the federal government basically doesn’t count as a person.

But that, Pai wrote, is inconsistent: As written, the government qualifies as a “person,” much as any other entity, and therefore, to his reading, the entire Order is invalid.

In sum, Pai wants to protect consumers from receiving robocalls, but he also wants to permit businesses to make more of them legally. But while he wants to expand who can make robocalls to you, he wants to limit the government’s ability to do so if businesses are more restricted than the feds are.

All things considered, that’s a lot of legal tea-leaf reading.

What About Strike Force Robo?

In the meantime, there is no proposed rule currently before the FCC relating to robocalls. However, there is a Robocall Strike Force, made up of consumer advocates and industry representatives, theoretically trying to address the issue.

The Strike Force first met in August, and was told to develop a plan within 60 days for permitting consumers to block spam calls in a way that the wireless and telecom industries can live with.

60 days later, the Strike Force had mixed results. On the one hand, the companies committed to rollout milestones for new caller ID standards; on the other hand, those standards still don’t exist.

The companies participating did, however, see success from a limited test of a “Do Not Originate” list. Some numbers on that list — in this case, from the IRS — exist only to take incoming calls, rather than to make outgoing ones. In testing, blocking those numbers from making outgoing calls led to a significant decrease in IRS-scam complaints.

But everything the Strike Force managed to put out in its first two months is, as our colleagues at Consumers Union called it, “half a loaf.” Better than none, sure, but still not providing consumer relief in the immediate sense.

Now, however, we are faced with another question about the Strike Force: will it even be able to continue under the new administration?

We asked the chairman’s office. A spokesman for Pai tells Consumerist that, “Chairman Pai has made clear that addressing robocalls is a priority for him. He discussed this at his first public remarks since being designated chairman, at last week’s meeting of the FCC’s Consumer Advisory Committee, and again after [the January] Open Meeting.”

However, the representative added, “It is too early to comment as to specifics for how we will pursue this agenda, including the role of the industry-led Robocall Strike Force. But we can note generally that the Chairman supports such industry-led efforts to support consumers and personally attended both public meetings of the group.”