The FCC’s ‘New’ Plan Won’t Save America From Robocall Hell

The agency’s unwillingness to stand up to industry will likely be the proposal’s undoing

Ajit Pai, Chairman of the Federal Communications Commission. Credit: Alex Wong/Getty Images

OnOn any given day, the Federal Communications Commission (FCC) is blasted with a torrent of consumer complaints. Some are legitimate, while some are aggressively stupid. In addition to gripes about terrible broadband or high TV prices, the agency is routinely inundated with reports about everything from the unbelievable storylines in professional wrestling to the threat of subliminal penises on MythBusters.

But year after year, one annoyance routinely tops the list: robocalls. The agency says roughly 60% of all FCC complaints each year (some 200,000 all told, or around 548 every day) are about annoying “unwanted” calls — a rotating crop of robocalls and other scams perpetrated on American consumers.

Despite endless pledges from the federal government to make it better, including one just last week, the problem is only getting worse. Experts say the telecom industry is largely to blame for the endless onslaught of worthless calls.

And it is an onslaught. Robocall blocking company YouMail runs a Robocall Index tracking the growth of the menace. The company’s latest data indicates that 4.9 billion such calls were placed in April alone, with 6.8 million calls placed each hour. (One survey suggests that 44.6% of all calls to mobile phones will be scams this year.) The culprits utilize technology that allows them to “spoof” their phone number and hide their origins, which makes them much harder to track.

Since 2015, the FCC has levied $208.4 million in fines against robocallers for violating the Telephone Consumer Protection Act (TCPA), a law passed in 1991 that was designed to restrict the frequency and volume of such calls. Yet only $6,795 has actually been collected, thanks in part to the slow adoption of call authentication technologies, like SHAKEN/STIR, which make it harder for scammers to spoof their numbers and hide their identities.

Last week, FCC chairman Ajit Pai unveiled what he claimed was a new initiative to tackle the robocall menace. As part of the effort, Pai proposed further modifying FCC rules to make it clearer that carriers could implement call-blocking tech by default on user mobile devices.

“By making it clear that such call blocking is allowed, the FCC will give voice service providers the legal certainty they need to block unwanted calls from the outset so that consumers never have to get them,” Pai said in a statement. The FCC boss proclaimed that “many voice providers have held off developing and deploying call-blocking tools by default because of uncertainty about whether these tools are legal under the FCC’s rules.”

“This follows a familiar pattern of Pai taking the initiatives of the Obama FCC, filing the serial numbers off, and then claiming these ideas as his own.”

But while the FCC press release and much of the resulting coverage made it sound like the primary reason for America’s robocall hell was murky FCC rules, experts say a bigger problem is that carriers have spent years dragging their feet in terms of deploying technical solutions, largely because they weren’t keen on paying for them.

Harold Feld, a lawyer at consumer advocacy group Public Knowledge, tells OneZero that there’s very little in the FCC’s plan that’s actually new, and there’s even less in the plan that would hold carriers accountable for any failure to do more. Feld said much of the plan is simply a rebranding of past proposals from the FCC under the Obama administration, which had been run by Tom Wheeler.

“This follows a familiar pattern of Pai taking the initiatives of the Obama FCC, filing the serial numbers off, and then claiming these ideas as his own,” Feld says. “It takes truly world class chutzpah for Pai to do this after he dissented from virtually everything Wheeler tried.”

Wheeler’s FCC had already urged carriers to provide free robocall blocking technology to mobile subscribers, something that many carriers failed to follow through on. The previous FCC had also already clarified that this technology was perfectly legal under FCC rules, Gigi Sohn, a former lawyer for the agency, says.

“We said in 2015 that the carriers incurred no legal liability for allowing consumers to use robocall blocking technology,” Sohn says. “Here, Pai is saying that the carriers won’t incur liability for blocking robocalls by default. So I suppose it’s a bit stronger, but not by much.”

As it stands now, some carriers charge a fee for robocall blocking technology, while others don’t. And in all instances, consumers have to opt into the technology. Ideally, Pai’s rule change would result in all consumers being opted in by default.

But Pai’s proposal, to be formally voted on at a June 6 agency meeting, only recommends carriers deploy free robocall blocking tools. It doesn’t require that they actually do so. Feld said the plan also opens the door to U.S. mobile data customers — who already pay some of the highest prices in the developed world — paying even more money to mobile carriers for tools consumer groups argue should be free and part of existing service by default.

“Pai can’t resist giving carriers more goodies at consumer expense,” Feld says. “While we will need to see the actual language of the proposed order, this appears to allow carriers to have complete discretion to filter calls however they want in the name of blocking robocalls, and then insert a ‘robocall blocking’ line item fee on your bill.”

Groups like Consumer Reports say carriers like AT&T have a history of blaming everyone but themselves for their foot-dragging on robocalls. In 2016, Consumer Reports issued a scathing report and gathered more than 600,000 signatures demanding that mobile carriers do more. AT&T’s response was to repeatedly claim it lacked the “authority” to do so.

“While we appreciate the FCC’s continued interest in curbing robocalls, the Commission needs to take stronger action to give people some relief,” Consumer Reports spokesperson Maureen Mahoney tells OneZero. “The FCC’s proposal appears to stop short of requiring phone companies to implement call-blocking tools, at no charge, which we have been calling on the FCC to do for a long time.”

Consumer groups say companies like AT&T have a history of failing to seriously police fraud on their networks.

In 2012, the company was sued by the Department of Justice for failing to police credit card fraud on IP Relay networks used by the hearing impaired, in part because it made money from the calls. Two years later, AT&T struck a $105 million settlement with the FTC for not only ignoring third-party “cramming” on its network (when scammers place small charges on your bill for services you didn’t purchase), but for actively making it harder to detect the fraud on customer bills.

And while AT&T issued a statement applauding Pai for taking “aggressive steps” in the battle against robocalls, few experts found anything particularly aggressive about the proposal.

For example, while Pai urged carriers to adopt new SHAKEN/STIR technology that could help rein in phone number spoofing, carriers had already recently announced plans to do so after being prodded for many years. And there’s nothing in Pai’s plan that would hold carriers’ feet to the fire if they lag on implementation or simply refuse to deploy such technologies altogether.

Margot Saunders, senior counsel at the National Consumer Law Center, says that the FCC proposal also fixates on scams, while ignoring the fact that many annoying and illegal robocalls come from overly-aggressive, but legitimate, debt collectors and telemarketers.

Saunders told Congress last year that many companies call American consumers dozens of times a day, sometimes over miniscule amounts of debt and in violation of the Telephone Consumer Protection Act (TCPA).

“The debt collection calls are a huge problem,” she says. “Same thing with telemarketing calls.”

Obama’s FCC attempted to expand the TCPA to ban any robocalls to consumers who hadn’t consented to them. But a court overturned those efforts after a lawsuit by ACA International, the lobbying arm of the debt collection industry.

“It’s clear that the companies didn’t want to spend the money to help their subscribers block robocalls. Let’s see if they adopt the call authentication software.”

At the time, critics argued that the legal victory would make it harder for consumers to sue under the TCPA, since it dramatically narrowed the definition of an autodialer. In the years since, telemarketers and debt collection agencies have heavily lobbied the Trump administration to ensure any TCPA changes wouldn’t harm industry revenues.

The Pai FCC has been receptive. The same week Pai was unveiling his new robocall initiative, Republican FCC Commissioner Mike O’Rielly visited ACA International to assure them the Pai FCC has their best interests at heart as it ponders any TCPA modifications.

“Repeat after me,” O’Rielly told the audience. “‘Robocall’ is not a bad word.”

Both Saunders and Mahony tell OneZero that tools and policy proposals should leave it up to consumers to define robocalls and filter out annoyances as they see fit.

“It’s clear that the companies didn’t want to spend the money to help their subscribers block robocalls,” says Sohn. “Let’s see if they adopt the call authentication software and if the chairman makes them use it if they don’t.”

Consumer groups have long maligned Pai’s FCC as a rubber stamp for the interests of the nation’s biggest telecom and media companies. From gutting popular net neutrality rules to neutering the agency’s authority over broadband providers at industry behest, they say the current FCC isn’t much for challenging sector giants or holding them accountable for misdeeds.

Of course, carriers were never held accountable for prolonged, life-threatening repair delays in the wake of hurricanes in both Florida and Puerto Rico. They’ve yet to be punished (or even criticized) by Pai’s FCC for their collection and sale of your daily location data to a long list of companies who’ve repeatedly failed to adequately secure it. Similarly, little has been done to police allegations of terrible broadband service or alleged taxpayer fraud in states from Minnesota to West Virginia.

Given this recent history, consumer groups say it’s not likely that the Pai FCC would be willing to penalize AT&T, Verizon, and T-Mobile should they lag on implementing anti-robocall tech. But with public annoyance at the robocall scourge reaching unprecedented levels, Pai may just be forced outside of his comfort zone.

Seattle-based freelance writer with a focus on tech, tech policy, and consumer rights.

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