June 28, 2022

Volume XII, Number 179

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June 27, 2022

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So I just Got Off the Phone With Congress…

So when official government communications from Congress started getting blocked by the carriers, who do you think the Feds turned to for help?

Of course, the Czar.

Just had a great chat with a couple of folks on the Hill who are digging into the phenomenon of carriers blocking official government messages. Obviously they wanted the Czar’s take.

They seemed SHOCKED to learn that the FCC has given the carriers the power to block calls using “reasonable analytics” regardless of whether or not the calls are legal.

In the first place, of course, the FCC can’t afford that power without Congressional permission–which it hasn’t been given– and it shouldn’t do afford that without standards and oversight–which it hasn’t given.

Here’s what I just sent these folks:

Dear [New Friend in Congress] 

Here are the rulings I mentioned:

2015 TCPA Omnibus. Here: https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1_Rcd.pdf  See Section 152-160 giving the carriers the right to block calls on an opt in basis. (I am fine with this, BTW. It makes good sense.)

2018 ruling confirming text messages are information services and not telecommunications. Order is here: https://docs.fcc.gov/public/attachments/FCC-18-178A1.pdf 

And here is an analysis I did on the ruling when I was at a different law firm:  https://www.natlawreview.com/article/now-i-get-it-using-fcc-s-order-keeping-text-messages-information-services-to-better

2019 Ruling allow default call blocking: https://tcpaworld.com/wp-content/uploads/2019/06/fcc-robocall-blocking-declaratory-ruling-and-third-fnprm.pdf  

My analysis is here

My explainer here.

Podcast discussing the call blocking rules when they came out.

December, 2020 Ruling expanding safeharbor and requiring cooperation with the Industry Traceback group and authorizing downstream carriers to block upstream traffic wholesale—again based on reasonable analytics rather than on any clear standards regarding legality

Here is my analysis of the rule when it was under consideration

As I have mentioned, I am all for the carriers serving as a private backstop to government efforts to stop illegal robocalls but there need to be clear standards in my view. “Reasonable analytics” is nothing more than a licensing scheme that serves as a prior restraint on lawful speech.  And—as you pointed out—there are no assurances (much less oversight) that this power to determine what messages Americans receive will be wielded fairly, let alone wisely.

As you go about your work to solve this problem in connection with official messages, don’t forget your friends in the private sector who are playing whack-a-mole out here. This will probably end up getting litigated at some point. But I’d love to see Congress get ahead of the issue.

If there is anything further I can do to assist please let me know.

The phenomenon of carrier censorship–er, call blocking–is driving people insane. The only thing folks wanted to talk about yesterday during my session at CCW was carrier call blocking issues. It is a HUGE and rampant problem in my view. No oversight. No standards. No reporting. It is INSANE that this is happening in our nation.

The carriers seem confident (cocky?) that they can label, block and ban private speakers from communicating with the American people–even when the calls are COMPLETELY legal–but I’m willing to bet blocking official government communications is one fight they won’t win.

I am honored to have been asked to assist Congress in the important work of assuring their OFFICIAL messages–not campaign message nonsense but actual critical communications from the federal government– get through and aren’t blocked by the so-called “reasonable analytics” that prevent access to our cell phones these days.

Simultaneously, however, I just had a great call with another HUGE player in the lead space that is EMPHATICALLY in favor of clear-cut standards and my creation of a trade organization designed to assure consumers understand what messages they are agreeing to receive via online webforms. By my estimate the trade organization should be able to eradicate a billion calls A MONTH with the private sector taking the lead in self-policing–instead of black box carrier algorithms dictating what messages get through.

Yes, the Czar is going to stop a billion unwanted robocalls a month while getting the carriers to back down on their censorship programs and helping Congress communicate important messages.

So, what are you up to?

© 2022 Troutman FirmNational Law Review, Volume XII, Number 174
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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