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FCC clamps down on robocalls to cell phones

FCC Chairman Tom Wheeler

There is nothing consumers hate more than robocalls, spam text messages and unwanted telemarketing calls. But even though more than 200 million people are on the federal government’s Do Not Call list, robocalls still manage to get through to cell phones.

Hoping to plug the regulatory loopholes, the Federal Communications Commission chairman Tom Wheeler is proposing new rules that will allow carriers to offer consumers call-blocking technologies and give consumers more control over who gets to call their phone numbers.

The proposal, which the FCC will vote on in its June 18 monthly meeting, is intended to clarify some of the provisions of the Telephone Consumer Protection Act, a 1991 law managed by the FCC.

Over the last couple of years, the FCC has faced increasing pressure from consumer groups, lawmakers and 39 State Attorneys General to do something to plug the loopholes in the law. It’s the top complaint at the FCC, which last year alone, received more than 215,000 TCPA complaints. The proposal is intended to resolve more than 20 pending petitions at the agency.

“At the FCC, we see consumer protection as one of our most fundamental missions,” Wheeler said in a blog post Wednesday explaining his proposal.

Both the FCC and the Federal Trade Commission manage the Do Not Call List and both agencies have been as aggressive as they can in policing abuses. In May, the FCC issued citations to three companies for robocalling cell phones with prerecorded messages without permission.

But it’s not been easy. Robocallers are hard to catch. They have an entire arsenal of technologies at their disposal that makes it easy to make calls without leaving a trail.

Although there are call-blocking solutions for mobile phones, carriers say that they can’t do anything until the FCC lifts the common carrier regulation that requires carriers to deliver all phone calls and prohibits them from blocking calls. Carriers have also been concerned that call-blocking technology could screw up their networks.

Under the FCC’s new proposal, consumers will have the right to change their minds about receiving calls from companies without filling out forms. Consumers can also subscribe to robocall blocking technologies from carriers that decide to offer them. However, the FCC is not compelling the carriers to offer blocking technologies.

The FCC is also going to double down on the definition of autodialing technology by subsuming all variations on autodialing technology and methods in all cases to the requirement of express written consent from consumers.

Some companies have argued that refinements in calling technologies and methods should exempt the company from the prior written consent rule when reaching out to their own customers using a number the customer provided.

“For businesses large and small, a prior written consent requirement is akin to a de facto prohibition on ATDS (automatic telephone dialing system) telemarketing, simply because obtaining and managing the consents would be unreasonably expensive and complex,” wrote Sirius XM Radio counsel, Jennifer Hindin and Scott Delacourt of Wiley Rein in a May 18 ex parte with the FCC.

Walgreen Co., for example, recently settled a class action law suit for $11 million because it sent pre-recorded prescription refill reminder calls to customer cell phones. Walgreen’s defense, that customers provided the cell phone numbers with the prescription, wasn’t considered express written consent by the court.

TCPA lawsuits have turned into pay dirt for plaintiff lawyers, leading to a 600 percent increase in TCPA autodialer class action filings between 2008 and 2011, according to Sirius XM’s FCC filing.

The FCC’s new proposal won’t change how political calls are treated under Do Not Call. For wireless calls, political campaigns still need express written consent from voters.

The FCC will allow, under very limited and specific exceptions, free calls or texts to cell phones to alert consumers of data breaches, fraud or emergencies. Even then, the FCC will allow consumers to opt-out of those calls.

Not all of the details of the FCC’s proposal have been released, but Sen. Ed Markey (D-Mass.) is worried it won’t go far enough. “I appreciate the FCC’s careful consideration of changes to the TCPA’s rules with the intention of protecting consumers’ privacy and ability to block unsolicited calls. However, I remain concerned that the proposed exemptions to the TCPA will result in an increase in unwanted calls and texts to consumers without their consent,” Markey said in a statement.