Robocalls Rule Cancelled. Ajit Pai Can’t Celebrate Enough.

Ajit Pai seems unable to contain his celebrations after a United States court struck down the robocall rule from the Obama Administration era.

The Federal Communications Commission had treated (rather improperly) people who had a smartphone as a robocaller (or potential robocaller to be more precise).

Federal Judges in the United States have eliminated an anti-robocall rule.

The judges made the statement that the Federal Communications Commission made the mistake of improperly treating every United States Citizen who owned a smartphone device as a robocaller threat.

As of now, it seems like the Federal Communications Commission won’t bother to appeal the court’s decision.

Why?

Because of Ajit Pai, the chairman of Federal Communications Commission.

As it turns out, back in 2015, when the Democratic majority implemented the decision of doing so, Ajit Pai vehemently opposed the rule change.

Now, the Chairman of the Federal Communications Commission even made the effort of issuing an official statement that praised the United States judges for their decision which they made last Friday.

The official statement from the Federal Communications Commission called the now-vacated rule something very interesting.

Ajit Pai called it yet another example of the Federal Communications Commission’s prior disregard for the regulatory and law overreach.

As mentioned above, back in 2015, the Federal Communications Commission made the decision that any device that met the TCPA (Telephone Consumer Protection Act) official definition of an autodialer would come under special regulation.

What is an autodialer?

Well, according to the Telephone Consumer Protection Act, any device would qualify as an autodialer if someone could modify it to make robocalls.

Fair enough.

But get this.

The Telephone Consumer Protection Act also said that even if the owner of the smartphone device had not actually gone ahead and downloaded a given autodialer app, it could still be considered as an autodialer.

This interpretation, as most can probably imagine, is a bit problematic.

Why?

Because the interpretation mentioned above treats any and all smartphone devices as autodialers.

It does that for the reason that all smartphone devices have this capability of downloading a given autodialing app.

This is what the judges ruled last Friday.

Potentially, an autodialer could actually violate existing anti-robocall rules with any call that it makes.

This scenario led judges to a troubling conclusion.

They said that any and all unwanted calls from a given smartphone device could potentially violate existing anti-robocall rules.

And that possibility held true even if the owner of the smartphone device in question had not downloaded any particular autodialing application.

The panel, which consisted of three judges, of the United States Court of Appeals for the District of Columbia Circuit announced in an official and unanimous court ruling last Friday.

The ruling stated that the Federal Communications Commission’s understanding of the matter appeared to subject all ordinary calls from all (or any) conventional smartphone devices to the (robocall related) Act’s coverage, an unrealistically and unreasonably expansive understanding and/or interpretation of the statute.

The Association of Credit and Collection Professionals filed the case against the Federal Communications Commission.

And the court gave its ruling based on that case.

The Association of Credit and Collection Professionals claims that the association represents law firms, asset buying companies, vendor affiliated, creditors and third-party collection agencies.

Reports also suggest that the judges also took this opportunity to invalidate another Federal Communications Commission ruling that essentially helped to protect United States consumers from robocalls to phone numbers which are reassigned.

What Is The Difference Between Robocalls And Normal Calls?

Sometimes and under specific circumstances, robocalls and normal calls can resemble each other.

The Telephone Consumer Protection Act generally had made it illegal for anyone to call a given cell phone device via an autodialer’s help.

Of course, these rules came with several exceptions.

Perhaps the first one should understand the position of the US law as far as autodialers are concerned.

Under current United States Law, an autodialer basically represents a device.

A device which has the capacity to actually perform functions such as producing and/or storing telephone number using a sequential and/or random number generator.

Moreover, an autodialer further has the capability to dial those generated numbers.

This is what the United States judges noted in their ruling.

The Federal Communications Commission made the tremendous error of stating that any smartphone device’s capacity to make illegal robocalls included potential functionalities.

Anyone could enable these functionalities by simply downloading a smartphone device application.

This is what the judges wrote in their ruling.

The judges also wrote that the Federal Communications Commission’s ruling on the matter concluded that the application download and other kinds of software additions of a similar variety (both of which brought about enhanced functionality on part of the smartphone device)  were appropriately considered to be within a given smartphone device’s capacity.

The ruling also stated that all smartphone devices met the statutory definition of an auto dialer app.

Even the smartphone devices that did not have any kinds of autodialing apps installed on them.

According to the ruling, this was the approach of the Federal Communications Commission.

What Is The Federal Communications Commission Approach?

Well, if one takes the Federal Communications Commission’s approach then any type of uninvited call presents a problem.

And that includes a message as well.

The Federal Communications Commission’s approach categorizes any kind of unwanted call and/or message, from any smartphone device as a violation of the statue.

According to the FCC, even if the caller or the sender did not use any auto dialer features in order to make the call.

Or even to send the message.

The Judges also wrote that any smartphone device users may have to deal with a $500 fine in certain scenarios.

The judges also gave a detailed hypothetical example of such a scenario.

The example that the judges gave required the reader to imagine a party scenario.

A scenario where a person wished to send another person an invitation for a given social gathering.

The person could have met that other person only recently and for the first time.

Moving forward from that, if the person lacked the prior consent of the recipient to send the above-mentioned invitation and only obtained the new acquaintance’s smartphone device cell number from another mutual friend, then that person ostensibly committed a crime.

The person committed a crime by violating the United States Federal law.

How?

Well, the person called and/or sent a text from his/her smartphone device to extend the supposed invitation to a party.

Or a gathering of any sort.

And if the person sent a group message in order to invite a total of 10 people to the party/gathering, then the person would do that (again) without managing to secure prior and expressed consent from any or all of the recipients.

Moreover, the judges wrote, that person would not only have infringed the Telephone Consumer Protection Act but also would have done it 10 distinct times.

This would actually qualify the person who sent the invite to face huge charges.

According to the judges, the person could face a minimum damage recovery fine of $5000.

The US judges also took their time in concluding their ruling and close it out with some other thoughts.

The ruling concluded by stating that the panel considered it untenable to actually construe terms such as “capacity” in the official statutory definition of a given autodialer device in a specific manner which brought, within the official definition’s fold, almost all of the most pervasive type of smartphone equipment known.

The concluding remarks also said that the current definition also affected devices that people used countless times every single day.

For what exactly?

For routine communications.

Not for any nefarious objectives.

According to the judges remarks, that held true for the majority of the people living in the United States of America.

In the last few lines of their ruling, the judges said that it could not be the case that each and every uninvited communication for any given smartphone device constituted something that infringed United States federal law.

The judge’s remarks also pointed out that such a definition would include nearly every United States citizen as a Telephone Consumer Protection Agency-violator-in-the-waiting.

In fact, it could also turn these people into a violator-in-fact.

However, the Federal Communications Commission’s 2015 order had its own side of the story with which it defended the commission’s approach.

That order said that the Federal Communications Commission had interpreted the term capacity a bit broadly.

And it did that well before consumers started to use smartphone devices on a wider scale.

Despite that position, no one had any evidence in any record that an individual consumer had been sued based only on his/her typical use of the technology that we now know as the smartphone.

This is what the Federal Communications Commission said at the time.

Who Made The 2015 Decision?

Of course, it was Tom Wheeler.

Tom Wheeler acted as the Chairman of the Democratic majority Federal Communications Commission.

Even back then, Republicans opposed the decision.

Specifically, the then commissioners including Michael O’Rielly and Ajit Pai.

Both of them objected to the way the Federal Communications Commission defined autodialer.

Now, we all know that Ajit Pai became the Chairman of the Federal Communication Commision just last year.

Recently, Ajit Pai said that the FCC’s 2015 ruling did something unfair.

It placed every United States consumer with any type of smartphone at a substantially increased risk of violating United States federal law.

Ajit Pai said that was why he dissented from the agency’s misguided previous decision.

Moreover, he said, he found it very pleasing that the DC circuit also decided to reject FCC’s 2015 order.

The Court Also Rejected One-Call Safe Harbor

So what exactly did the court’s decision cover?

Well it covered several aspects of the agency’s 2015 order.

Or the robocall order more formally.

The United States DC Court judges vacated the FCC’s approach to any and all automated calls made to phone numbers which were reassigned.

But it did so only in cases where the previous owner of the phone number had given consent but the current owner of the same number had not given consent.

Consent to what?

Consent to receiving automated texts and calls.

For clarity’s sake, the FCC did allow one-call safe harbor.

What is one-call safe harbor?

It is a term that means robocallers have the permission to make one single call after that the given number has gone through the reassigning process.

It can do so without violating any US law.

The judges also ruled that it considered one-call safe harbor as arbitrary.

Why?
Well because (at least in part) the situation gets confusing.

Especially with regards to the first call after a given number has gone through the reassigning process.

Such a robocall may not give the caller any indication whatsoever that the number has gone through the reassigning process.

That can be the case if, for instance, the text message does not cause any response.

Needless to say, that is often the case without or with a reassignment.

Perhaps this is a good time to mention that the FCC’s order had two other parts which managed to pass the legal muster.

The judges involved with the case upheld the agency’s approach to the actual revocation of consent.

Under such circumstances, a party may revoke his/her consent via some reasonable means.

The revocation of the consent should clearly express a lack of desire to receive any further texts and/or calls from the caller.

Along with that the judges also sided with another aspect of the FCC’s order.

That aspect related to the scope of the FCC’s exemptions for things such as healthcare calls which are time-sensitive.

Democrats Want The FCC To Step Up Its Fight Against robocalls.

Jessica Rosenworcel, a Democratic FCC commissioner, recently urged the FCC to step up its efforts.

Efforts for what?

Efforts to combat robocalls.

Rosenworcel said on Friday that the one thing she had a clear idea of was that in the wake of the court’s decision, robocalls would continue to increase.

Until and unless the FCC decided to do something about robocalls, these won’t go away on their own.

What does that mean exactly?

According to Rosenworcel, that means that the FCC will have to do something new.

This is the same agency which had exercised great audaciousness while taking away the citizen’s net neutrality rights.

Now, the same agency is on the hook.

It has to protect people from the invasion of all those annoying robocalls.

She also said that a lot of time had passed.

And that the American public deserved a serious response from the likes of the FCC.

The US citizens also wanted a reprieve from all the robocalls.

robocalls had become an unrelenting nuisance for many living in the US, according to Rosenworcel.

The FCC, under the leadership of Ajit Pai, recently did manage to do something positive.

The agency authorized US carriers to block robocalls from all invalid phone numbers.

And it authorized them to do that before robocalls could reach customers’ mobile phones and landlines.

With that said, the FCC made to mention of a requirement for carriers to provide such capability without any extra cost.

Apart from that, the FCC also proposed something else that could prove to be very useful.

A massive fine.

In other words, the agency wants scammers to pay $120 million fine.

These scammers allegedly made a total of 96 robocalls in a period of just three months.

Ajit Pai, with the help of another official statement, said that he, as the Chairman, had made plans to continue in a similar fashion to ramp up anti-robocall efforts.

He said that the agency would continue to pursue its objectives.

Those objectives included things such as coming up with consumer-friendly policies on all types of issues.

These issues represented problems such as,

• Robocalls
• Call authentication problems
• Reassigned numbers problems
• Problems relating to blocking robocalls which were illegal

Pai also mentioned the agency would continue to maintain its strong approach to the enforcement of rules against scammers and spoofers.

The approach would include the $200 million plus in the way of fines that the agency proposed a year before.

Ed Markey, a Democratic Senator from Massachusetts, expressed his disappointment that the court decided to vacate protections which discouraged callers from going ahead with more than one unwanted text/call to reassigned phone numbers.

This is what an announcement from Ed Markey’s office said.

Markey also urged the agency to use its current authority to further re-establish enforceable and robust protections.

So what would Markey do if the FCC does not pay heed to his advice and fails?

Well, he said that we would then work with his Congressional colleagues in order to restore all commonsense protections.

In the end, one has to keep in mind that some people don’t really care about robocalls.

Or whether they want to allow these robocalls on landlines and/or smartphone devices.

All they want is an option.

An option which would allow all citizens of the country to opt in or out.

Then the FCC has to ensure that it penalizes companies which disregard the official no-call list.