FCC Releases Adopted Robotext R&O/FNPRM/Waiver Order

On December 18, 2023, the FCC released the Second Report and Order, Second Further Notice of Proposed Rulemaking in GC Docket Nos. 02-278 and 21-402, and Waiver Order in CG Docket No. 17-59 (“Second R&O,” “Second FNPRM,” and “Waiver Order” respectively) on combatting illegal robotexts.  The item was adopted at the December Open Meeting.

In the adopted item, the FCC clarified that the requirement to block illegal text messages upon notification from the Commission will be effective 180 days after the date of publication of the Order in the Federal Register and is not subject PRA approval.

R&O:

In the R&O, the FCC adopts rules to combat unwanted and illegal text messages and calls.  The FCC acknowledges the voluntary efforts that wireless providers have made to protect consumers from unwanted and illegal text messages, and notes that it believes that those efforts have gone a long way to protect consumers.  Nevertheless, the FCC adopts the following rules and requirements to further protect consumers from unwanted and illegal texts:

  1. Mandatory Blocking Following Commission Notification:  The FCC requires terminating providers to block all texts from a particular number or numbers when notified by the Enforcement Bureau of suspected illegal texts from that number or numbers, unless a provider’s investigation shows the identified texts are legal.
    1. Notification Contents: The notification will: (1) identify the number(s) used to originate the suspected illegal texts and the date(s) the texts were sent or received; (2) provide the basis for the Enforcement Bureau’s reasonable belief that the identified texts are unlawful; (3) cite the statutory or regulatory provisions the suspected illegal texts appear to violate; and (4) direct the provider receiving the notice that it must comply with section 64.1200(s) of the Commission’s rules.  The notification will also specify a reasonable time frame for the notified provider to complete its investigation and report its results to the Enforcement Bureau.  The Bureau has discretion to set the response time frame, which may be less than 14 days if the Bureau determines such a shortened response period is reasonable.
    2. Provider Response: Upon receipt of such a notice, the provider must promptly investigate the texts and number(s) identified in the notice and begin blocking all texts from the identified numbers within the timeframe specified unless the provider’s investigation determines the texts are legal.  The provider must report to the Enforcement Bureau the results of its investigation, including a certification that it is blocking texts from the identified number(s) or if it determines that the texts are lawful, an explanation as to why it has reasonably concluded the tests are not illegal.  If the provider cannot block some of the texts because the number has been reassigned, the provider must notify the Enforcement Bureau.
  2. Extends the National Do-Not-Call (“DNC”) Registry Protections to Text Messages:  The FCC extends the DNC Registry’s existing protections to text messages.  Accordingly, texters must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry.
  3. Encourages Providers to Make Emailto-Text an Opt-In Service: The FCC encourages providers to make email-to-text an opt-in service to reduce the number of fraudulent text messages customers receive.  The FCC notes a number of scams are perpetuated through email-to-text and that it is seeking comment on making this mandatory.
  4. Closing the Lead Generator Loophole:  The FCC clarifies that texters and callers must obtain a consumer’s prior express written consent from a single seller at a time on the comparison-shopping websites that often are the source of lead generation.  The FCC also requires: (1) that such websites provide clear and conspicuous disclosures and (2) that any messages received as a result of such consents from a comparison-shopping website are logically and topically related.
  5. Declines to Adopt Caller ID Authentication Requirements for Text Messages – the FCC agrees with commenters that spoofing in the text message domain is rare and that industry is currently developing authentication technologies for text messages.  Thus, the FCC declines to adopt authentication requirements for text messages at this time.
  6. Cost Benefit Analysis – the FCC “conservatively estimates” that the harm to consumers for unwanted, illegal texts is at least $13.5 billion annually.  The FCC also concludes that the cost to wireless providers will be minimal.

The R&O will be effective 30 days after publication in the Federal Register, except for the rules requiring express written consent for marketing text messages.  The express written consent rules will not become effective until six months after publication in the Federal Register or 30 days after notice that the Office of Management and Budget has completed review of any information collection requirements that the Consumer and Governmental Affairs Bureau determines is required under the Paperwork Reduction Act, whichever is later.

FNPRM

In the FNPRM, the FCC seeks comment on the following:

  1. Extending the Mandatory Blocking Requirement to Originating Providers:  The FCC proposes to require originating and other providers to block text messages following Commission notification of illegal texts.  The FCC seeks comment on this proposal, on whether originating providers should block all texts from a particular source following Commission notification, and how long providers should be required to block, among other things.
  2. Requiring Blocking of Text Messages Based on Reasonable Analytics: The FCC seeks comment on requiring or incentivizing providers to block text messages based on reasonable analytics.  The FCC also seeks comment on how to define reasonable analytics for this purpose, whether to use volumetric triggers to identify bad traffic, and whether to include a safe harbor, among other things.
  3. Alternative Approaches to Text Blocking: The FCC seeks comment on alternative blocking or mitigation rules it could adopt.
  4. Protections Against Erroneous Blocking: The FCC seeks comment on whether it should adopt additional protections against erroneous blocking, and if so which protections should be adopted.
  5. Text Message Authentication and Spoofing: The FCC seeks additional comment on text message authentication and spoofing.  In particular, the FCC seeks comment on whether spoofing is an issue in the text message domain, if there are new or in-process technical standards for authenticating texts, and whether to require regular updates on the progress of text authentication, among other things.
  6. Requiring Tracebacks for Text Messages: The FCC seeks comment on whether it should require a response to traceback requests for texting.  In particular, the FCC seeks comment on requiring a response to traceback requests from the FCC and law enforcement within 24 hours, consistent with the existing rule for gateway providers and the specifics of the traceback process for text messages.
  7. Mandating that Emailto-Text be an Opt-In Service:  The FCC seeks comment on requiring providers to make email-to-text an opt-in service and whether that would reduce the number of fraudulent texts that consumers receive.  The FCC also seeks comment on whether this would result in the blocking of important or urgent messages.
  8. Cost Benefit Analysis: The FCC seeks comment on its estimate that the total harm from unwanted and illegal texts is $16.5 billion, and on the costs of the proposals to providers.
  9. Other Issues: the FCC also seeks comment on digital equity and inclusion and its legal authority.

Comments on these proposals will be due 30 days after Federal Register publication, with Replies due 45 days after publication.

Order

In the Order, the FCC sua sponte adopts a waiver for 12 months to allow mobile wireless providers to access the Reassigned Number Database to determine if a number has been permanently disconnected since the date of the suspected illegal text described in a Notification of Suspected Illegal Texts.  The FCC strongly encourages providers to determine whether a number has been reassigned in order to avoid blocking lawful texts from a different source using the number.  The Bureau of Consumer and Governmental Affairs has the authority to extend the waiver as appropriate.

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