FCC’s Crackdown On Illegal Robotexts Effective On March 26, 2024: Lead Generator Loophole Closed, DNC Registry Applies To Texts, Opt-Ins Encouraged for Email-To-Text, Mobile Carriers Required to Block Texts After Notification; Comments Sought on New Proposed Robotext Rules
As delineated in a previous Client Advisory in December 2023 the Federal Communications Commission (“FCC” or “Commission”) released its Second Report and Order, Second Notice of Proposed Rulemaking, and Waiver Order (“Order,” “NPRM,” and “Waiver”). The Order imposes new strict regulations on robotexting. The NPRM seeks comments on additional proposed robotext rules. The Waiver allows mobile providers to use the Reassigned Number Database (“RND”) to determine whether a number the Commission ordered blocked has been permanently disconnected. The Commission expects the Waiver will help prevent blocking of lawful texts from a new subscriber to the number.
Today the Order and Waiver and NPRM were published in the Federal Register. Most provisions in the Order are effective March 26, 2024, except for the mobile carriers’ text blocking requirement, which, along with the Waiver, are effective July 24, 2024. The one-to-one consent rule is effective January 27, 2025. The deadline for submitting comments on proposals in the NPRM is February 24, 2024 and reply comments are due by March 11, 2024. The Waiver will be valid for one year following its effective date.
The following are brief summations of the Order and NPRM. Please see the above-referenced Client Advisory for additional information.
Summary of Order
- Terminating mobile providers must block all text messages from a particular number following notification from the Commission of illegal texts from that number.
- Texters must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the Do Not Call (“DNC”) Registry.
- The FCC strongly encourages providers to make email-to-text an opt-in service to reduce the number of fraudulent text messages consumers receive.
- Closing the Lead Generator Loophole. Texters must obtain a consumer’s prior express written consent to robocall or robotext the consumer soliciting their business. This one-to-one consent must come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller. Also, robotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website
Summary of NPRM
The FCC seeks comments on:
- Text Blocking. The FCC proposes extending the text blocking requirement to include originating providers, and to require all immediate downstream providers to block the texts from providers that fail to block after Commission notification. Related text-blocking requirements are also teed-up for comment.
- Requiring Blocking of Texts Based on Reasonable Analytics. The Commission seeks comment on requiring or incentivizing providers to block texts based on reasonable analytics. The FCC asks for input on, among other things, how to define “reasonable analytics,” and whether special modifications should be made for small businesses,
- Protections Against Erroneous Blocking. If the Commission adopts additional text blocking requirements, should the FCC also adopt further protections against erroneous blocking.
- Text Message Authentication. The Commission seeks comment on text message authentication and spoofing, e., should the FCC adopt authentication requirements, such as STIR/SHAKEN.
- Should the FCC require responses to traceback requests for texting, as it does for robocalls.
- E-Mail-to-Text Messages. The Commission proposes to require (instead of recommending) that providers make email-to-text an opt in service, so that subscribers wishing to receive these types of messages would first have to opt into the service.
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