"I don't know what you mean by 'glory,'" Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't — till I tell you. I meant 'there's a nice knock-down argument for you!'"
"But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master — that's all."
The Humpty Dumpty story from Lewis Carroll’s “Through the Looking Glass: And What Alice Found There” is well-known in legal circles as a critique of legal interpretations that seem forced. I use it here because the word robocall has meant many things, and its usage is no longer clear. This makes policy discussions confusing and broad brush; there are key differences between spoofing, scamming and automated messages that are blurred if we call them all robocalls.
The term robocall isn’t formally defined in any statute and yet, everybody is setting out to get rid of them. Without a stable definition, we can’t tell whether the solutions are working or whether we’re better off if they do.
Until recently, a robocall was one of those calls you get from a robot — an automated or prerecorded voice message. The first APVM reference I found, from 2002, refers to the familiar APVMs that came during campaign season. By 2004, there are references to similar APVMs from schools to parents, alerting them of school closings, timing of report cards and absences. The U.S. Federal Trade Commission understood the word the same way when it made rules to regulate marketing robocalls in 2009.
In 2011, the U.S. Federal Communications Commission determined that what were “often referred to as robocalls” also included “autodialed calls.” In its 2012 Report and Order, the FCC included APVMs and autodialed calls under the term “telemarketing robocalls.” The order updated the rules and regulations implementing the Telephone Consumer Protection Act of 1991, which dealt with both items but does not mention the term “robocall.” The term wasn’t used until almost a decade later, when the FTC added its rules for AVPMs.
Three years later, FCC Commissioner Michael O’Reilly repeated the same idea: Robocalls are APVMs and autodialed calls. The prefix “robo” has come to mean “automated or robotic” or more simply, “done by robots.”
By 2015, the FCC used the term robocall to mean “calls that require consumer consent” and, later that year, conducted workshops on blocking “unwanted robocalls” and caller ID spoofing — Caller ID spoofing is different from robocalling, and some robocalls are wanted — moreover, they are legal if you get consent.
Soon after that, the term robocall just meant “unwanted call.” In its recent “robocall” Declaratory Ruling, the FCC, citing robocall complaint statistics based on the pre-2011 definition found that Do Not Call complaints increased from 3,578,710 in fiscal year 2015 (2,125,968 of which were classified as robocalls).
But the order, which lets carriers block robocalls by default is more inclusive, referring to “illegal calls,” “scams” and caller ID spoofing, permitting carriers to block calls that “appear to be illegal” (Paragraph 25) or are “unwanted” (Paragraph 33) and allows them to identify these calls “based on any reasonable analytics.”
Most recently, the FTC announced a multiagency crackdown on illegal robocalls. This was some amazing work by the agencies involved, and they deserve a victory lap. That said, calling it a crackdown on robocalls buries the lede. Some of those calls may have been AVPMs or made with autodialers, but that’s not what the cases are about. They’re mostly about fraud and harassment. One complaint involves a group that offered bogus credit cards to financially distressed consumers (one paragraph of the complaint says that some of the calls used pre-recorded messages); in the next case, the FTC notes the fraudsters used just about every communication method except for raven and smoke signal to offer fraudulent money making opportunities.
In fairness, two of the cases did involve robocalls, but one was against a man who designed an autodialer and called millions of consumers, most of whom were on the Do Not Call Registry list, and used spoofed caller IDs. In the other case, the FTC alleged the caller made the calls with the intent to annoy, abuse or harass the call recipients. In other words, none of these cases involved plain old robocalls, no matter how the term is defined — unless the definition is “unpopular calls.” Another example came Aug. 5, 2019, when the FCC announced a ban on “foreign robocalls,” by which it meant spoofed calls from overseas. The ban implements a section of Ray Baum’s Act that permitted the FCC to make rules on overseas spoofing.
Where do we go from here? I propose the following definitions to clarify the discussion.
Robocall: Call that delivers an automated or prerecorded voice message.
Spoof: To disguise the true source of a call or text by falsifying caller ID information.
Scam call or text: A call or text where the caller tries to trick or swindle the recipient. These calls may involve spoofing (some scams involve calls that appear to come from the IRS, for example) or robocalling (to accelerate the success of the scam by weeding out the skeptics).
Spam call: Spam emails are those that are unsolicited; solicited email is not spam. The same logic legally applies to calls. Robocalls are legal and “welcome” with consent. Calls made with autodialers are, too — even if the recipient is on the Do Not Call Registry.
This allows policy discussions to focus on the separate issues these kinds of calls might present. This approach also allows more specific tracking and reporting, which could help us build better algorithms.
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