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A Message to the FCC: “First, Do No Harm”

The FCC is addressing a robocall-related agenda item entitled Declaratory Ruling and Third Further Notice of Proposed Rulemaking (FCC-CIRC1906-01) at its upcoming meeting on June 6, 2019. This document includes two aspects, the first being a Declaratory Ruling that would allow carriers to block “robocalls” to their customers, by default, after determining such calls are unwanted and/or illegal. The carriers are expected to employ analytics-based algorithms for determining whether such calls are robocalls. The second item is a Notice of Proposed Rulemaking proposing a safe harbor for carriers blocking calls by targeting potentially spoofed calls identified using the “SHAKEN/STIR” standards.

What’s in the ruling?

The Declaratory Ruling allows carriers to 1) block calls appearing to be illegal by use of analytics algorithms and, 2) “whitelist” numbers in a consumer’s contact list. It also reminds voice service providers that protecting emergency communications is paramount. The exact scope of “emergency communications” is not defined, but it includes calls from public safety entities, including PSAPs, emergency operation centers, or law enforcement agencies.

Presumably, this may even include emergency communications from schools. Would an automatic notification to a parent from their child’s school regarding a cancelled after-school event be considered an emergency communication? What about an automatic notification that the child is not attending school today, and may be truant or missing? What about an automatic notification of a school emergency, such as a school shooting?  All these calls may originate from the same number. How can these be distinguished and properly categorized? Or, consider a power-outage notification call that informs affected residents of the expected power restoration time? Some may not consider this by itself to be an emergency call, but if you are a caregiver for an elderly parent dependent on a portable oxygen generator, knowing how long the oxygen generator will be out-of-service is critical information, and may be considered an emergency communication.

Public safety concerns

The Declaratory Order creates an obvious, fundamental public safety issue. It does not define which types of calls and their telephone numbers are emergency communications. Second, it presumes that carriers will create a whitelist of such numbers that are not to be blocked. While the complete list of such numbers is unclear, certain numbers for local public safety, school, and police are easily identifiable to anyone with an Internet connection.

Thus, these numbers are easily discoverable by scammers. Once scammers start to spoof public safety numbers, our public safety is at risk. If such calls cannot be blocked, then scam calls masquerading as public safety numbers will dilute the effectiveness of ‘real emergency’ calls. If such calls are blocked, then the Declaratory Order will be violated. It is fundamentally unclear how carriers would comply in this situation.

“First, do no harm”

By passing this Declaratory Order, the Commission creates a public safety risk. It is unclear whether the Commissioners voting on this have considered this risk and have a solution. I asked one senior FCC staff member a year ago: What will the FCC do if scammers start to spoof numbers from the FCC? I did not receive an adequate answer. Now, it is time to ask the Commissioners who are voting on this item: What will the FCC do when scammers start spoofing public safety numbers? This Declaratory Order was hastily drafted and made available only recently, and it may very well cause more harm than good.

The Commission should recast the Declaratory Order as a Notice of Proposed Rulemaking. This would allow the Commission to solicit more comments on the impact of this Order, and understand why an implicitly defined whitelist is not a solution to the robocall problem. We do have a solution being developed, namely a new technology called “SHAKEN & STIR”. But, until that technology is in place, the FCC should not pass the Declaratory Order, and certainly not at the June 6 meeting. The FCC should consider applying the rule from the Hippocratic Oath: “First, do no harm.”

The opinions presented here are those of Karl Koster, and not necessarily those of Noble Systems. The contents should not be construed as legal advice nor as comments reflecting any regulatory position of Noble Systems.


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