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District Court dismisses First Amendment challenge to Montana’s statute banning robocalls
On February 9, a federal judge for the U.S. District Court for the District of Montana denied a plaintiff’s motion for summary judgment, which sought to overturn the State of Montana’s statutory restrictions on robocalls. Among other things, the plaintiff—a Michigan-based political consulting firm that relies on automated calls to gather data—claimed the 1991 Montana statute violated its right to free speech under the First and Fourteenth Amendments of the United States Constitution by prohibiting automated sales and political campaign calls. However, the court ruled that the Montana statute is sufficiently narrowly tailored and is intended to preserve and protect residents’ “control over [their] property and personal choices regarding receipt of communications.” Exemptions to the ban, the court explained, can occur “if the permission of the called party is obtained by a live operator before the recorded message is delivered.” The narrow tailoring leaves “ample alternative (including all of the more traditional) channels of communication for the protected political speech.”
FTC issues comments on FCC’s robocall blocking rules
On January 31, the FTC submitted a comment letter in response to the FCC’s request for input on its November adoption of rules allowing phone companies to proactively block illegal robocalls originating from certain types of phone numbers. (See previous InfoBytes coverage here.) Calling the development of a call-blocking, call-filtering solution to protect consumers from illegal and unwanted calls long overdue, the FTC offered support for efforts to encourage providers who block calls to “identify and quickly rectify any erroneous blocking.” However, FTC staff claimed that, based on the current record, it is unclear whether there exists “a need to require a formal challenge mechanism for errors resulting from provider-based call blocking authorized by this Report and Order.” The FTC noted that a formal challenge process is not necessary because, among other things, the FCC already cautions providers about wrongfully blocking unallocated or unassigned numbers and “warns providers that erroneous blocking may lead to liability for violating call completion rules.” Additionally, the FTC agreed with concerns raised by a telecom association that “white lists,” which contain numbers that should not be blocked, pose “substantial security risks” if the lists “fall into the hands of even a single robocaller” because they might serve as the “‘de facto master key’ that would provide robocallers with the ability to override all of the efforts painstakingly developed to thwart them.”
FCC Adopts Rules Allowing Voice Service Providers to Block Illegal Robocalls
On November 16, the FCC approved new rules allowing phone companies to proactively block illegal robocalls originating from certain types of phone numbers.
Pursuant to the report and order released on November 17, providers may block calls that: (i) are made from telephone numbers that are not designed to make outgoing calls; (ii) originate from telephone numbers listed on a subscriber’s “do not originate” list; or (iii) originate from telephone numbers with non-existent area codes, no provider assignment, or that are not currently in use. The FCC is seeking public comments from phone service providers by January 23, 2018, to minimize the possibility of blocking “lawful calls” by establishing procedures for identifying and fixing erroneous blocks.