FCC Releases Adopted Robotext R&O and FNPRM

On March 17, 2023, the FCC released the Report and Order and Further Notice of Proposed Rulemaking adopting rules related to blocking of robotext messages that are highly likely to be illegal.  The item was adopted at the March Open Meeting.

 The Report and Order takes the following actions:

  • The FCC adopts a requirement for mobile service providers to block texts at the network level (i.e., without requiring consumer opt in or opt out) that purport to be from numbers on a reasonable DNO list.
    • The scope of the rules adopted in the R&O are limited to SMS and MMS text messaging.
    • A “reasonable DNO” list includes:
      • Numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked;
      • North American Numbering Plan numbers that are not valid;
      • Valid North American Numbering Plan numbers that are not allocated to a provider by the North American Numbering Plan Administrator; and
      • Valid North American Numbering Plan numbers that are allocated to a provider by the North American Numbering Plan Administrator, but are unused, so long as the provider blocking the message is the allocatee of the number and confirms that the number is unused or has obtained verification from the allocatee that the number is unused at the time of blocking.
    • The FCC believes that this requirement will impose a minimal burden on providers, recognizing that “many mobile wireless providers already employ measures to block text messages [including DNO-based blocking].  For providers that already employ such measures, our rule imposes no additional burden.
  • The FCC adopts a requirement for mobile service providers to maintain a point of contact on a public-facing website for text senders to report erroneously blocked texts.
    • Providers may either establish their own point of contact or require their aggregator partners and blocking contractors to establish such a point of contact, so long as they can be easily contacted.
    • When a sender makes a credible claim of erroneous blocking and the provider determines that the text messages should not have been blocked, the provider must promptly cease blocking that number unless circumstances change. Providers need only accept blocking complaints from senders that can provide documented, objective evidence of blocking.
    • The FCC declines to set time limits on resolving blocking error complaints.
  • The FCC declines to:
    • Adopt and maintain a centralized DNO list [the FCC finds that commenters did not identify a problem with the FCC’s proposal and did not identify a problem their proposal was solving]
    • Require text blocking notifications [FCC finds that the record indicates that service providers are already providing adequate notice when they block texts]
    • Enact rules regarding safeguarding against blocking of text to 911 and other emergency numbers [FCC determines this is not currently a problem; will revisit if situation continues]
    • Adopt standards to ensure competitively-neutral and content-neutral grounds for blocking [FCC finds this is unnecessary because the mandatory blocking rule does not require a provider to examine the contents of the text message, rather it is based solely on the spoofed number associated with the text message]
    • Adopt a safe harbor for text blocking [FCC finds that because the blocking is mandatory rather than discretionary, blocked texts are highly likely to be illegal and thus a safe harbor is unnecessary]
    • Adopt caller ID authentication requirements for text messages [FCC bases this decision on record uncertainty about the current feasibility of such a requirement; however, raises this issue in the FNPRM]
  • The FCC determines it has legal authority to adopt these rules pursuant to (1) the TCPA; (2) its jurisdiction over the NANP under Section 251(e) of the Act; (3) the Truth in Caller ID Act; and (4) Title III of the Act.
  • The FCC determines that costs to providers are “expected to be modest, given the record evidence regarding licensees’ existing blocking practices” and finds that the benefits of the policy adopted in the R&O will exceed its costs.
  • The R&O will be effective 30 days after publication in the Federal Register and compliance will be required 6 months after the FCC publishes notice in the Federal Register that it has received OMB approval of the new collection requirements.

The Further Notice of Proposed Rulemaking seeks comment on:

  • A proposal to require terminating mobile wireless providers to investigate and block text messages when notified by the FCC that they are likely scams.
  • Whether and how the FCC can encourage efforts to develop technical solutions for text message authentication.
  • A proposal to clarify that the National Do-Not-Call Registry protections apply to marketing text messages.
  • A proposal to ban the practice of obtaining a single consumer consent as justification for delivering calls and texts from multiple marketers on subject beyond the scope of the original consent.  This proposal would close the “lead generator loophole” by amending the TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page.
  • The FCC’s authority to adopt the above proposals.
  • Any equity-related considerations and benefits that may be associated with the above proposals.

Comments on the FNPRM will be due 30 days after date of publication in the Federal Register; Reply Comments will be due 60 days after date of publication in the Federal Register.

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