The Federal Communications Commission (the “FCC”) has just announced its proposed agenda for the December Open Meeting. Included is the Second Report and Order and Second Further Notice of Proposed Rulemaking on Combatting Illegal Text Messages.
In line with its aggressive multi-pronged approach to fight illegal robocalls, the FCC seeks to adopt an equivalent policy to combat robotexts.
If adopted, the Order would:
- Require terminating mobile wireless providers to block all texts from a particular number when notified by the Commission of illegal texts from that number.
Unlike the existing requirement for voice service providers, here, terminating providers would have to block texts, while in call blocking the obligation is on gateway or originating providers. As a result, failure to comply with this robotext rule would not lead to all immediate downstream providers blocking all the identified provider’s traffic since there are no providers downstream from a terminating provider. Instead, terminating providers that fail to comply may be subject to the FCC’s traditional enforcement process, including monetary forfeitures.
To avoid blocking based on analytics that could lead to over-blocking, the rules would not require text blockers to also block traffic “substantially similar” to the traffic the Enforcement Bureau identifies.
The Enforcement Bureau would be required to specify a reasonable time frame for the notified provider to complete its investigation and report its results in the Notification of Suspected Illegal Texts, which timeframe may be fewer than 14 days, unlike in the case of voice providers.
- Codify that the National Do-Not-Call (DNC) Registry’s protections extend to text messages.
- Encourage providers to make email-to-text, a major source of illegal texts, a service that consumers proactively opt into.
- Close the “lead generator loophole” by making unequivocally clear that comparison shopping websites must get consumer consent one seller at a time, and thus prohibit abuse of consumer consent by such websites.
Under the draft rules, consumer consent would have to be in response to a clear and conspicuous disclosure to the consumer, and the content of the ensuing robotexts and robocalls must be logically and topically associated with the website where the consumer gave consent. Consent would need to be given to one seller at a time (“one-to-one consent”).
Under the existing rules, prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered ads or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the customer’s telephone number.
If adopted, the rule would prohibit the practices of “burying” disclosures in fine print only accessible through a hyperlink or consent to a hyperlinked list of sellers, even if effective for only a limited number of sellers to whom the consumer is matched. In addition, the consumer’s consent would not be transferrable or subject to sale to another caller because it will need to be given by the consumer to the seller.
The FCC reiterates that the draft rule would not prohibit lead generators from obtaining leads through valid consent and that multiple opportunities are available for responsible lead generators to obtain leads for potential callers. For example, such businesses could:
- offer to a consumer a checkbox list that allows the consumer to specifically choose each individual seller that they wish to hear from;
- offer to a consumer a clickthrough link to a specific business so that the business itself may gather express written consent from the consumer directly;
- manually dial or make non-prerecorded or non-artificial voice calls or texts; email customers, or display information directly on the third party website.
What the Further Notice Would Do:
- Propose and seek comment on additional text blocking options, including requiring originating mobile wireless providers to block texts from a particular number when notified by the Commission of illegal texts from that number or risk all of their texts being blocked.
- Seek comment on the current state of text authentication.
- Seek comment on the traceback process for texting and whether to adopt a requirement for mobile wireless providers to respond to traceback requests from the Commission and law enforcement.
- Propose and seek comment on requiring mobile wireless providers to make email-to-text an opt-in service.
The Waiver Order would allow mobile wireless providers to use the Reassigned Numbers Database to determine whether a number has been disconnected after the date of illegal texts in the Commission’s notification to avoid blocking of texts from reassigned numbers.
This Order and Further Notice of Rulemaking purporting to significantly affect the lead generation business models will be considered by the FCC at its December 13 Open Meeting. Stakeholders may request changes to the draft by submitting written comments or in meetings with the FCC until December 6, 2023.
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