New rules build on text message delivery restrictions put in place earlier this year and are informed by the Federal Communications Commission’s ongoing work against illegal robocalls.

TAKEAWAYS

• The Federal Communications Commission (FCC) adopted a new order that includes a directive to close the lead generator loophole by prohibiting use of a single consumer consent to inundate consumers with unwanted texts and calls.
• The Second Further Notice of Proposed Rulemaking suggests a stronger message blocking requirement and seeks comment on other ways to require providers to block unwanted or illegal texts.
• The Waiver Order permits providers to use the Reassigned Numbers Database (RND) to determine whether a number that the FCC has ordered to be blocked has been permanently disconnected.

The Federal Communications Commission (FCC) recently adopted a Second Report and Order (Order), Second Further Notice of Proposed Rulemaking (Further Notice), and Waiver Order that, among other things, take steps to protect Americans from illegal and unwanted text messages. The Federal Trade Commission puts the harm to consumers from scam text messages at $326 million for 2022, with other sources finding the harm reaching more than $20 billion. The FCC’s actions are intended to bolster Americans’ trust in text messages, which, unlike spam phone calls, are delivered to mobile devices without an option to ignore them before seeing some or all of the contents of the message.

The Order (1) requires terminating mobile wireless providers to block text messages from a particular number upon notification from the FCC; (2) codifies that the National Do-Not-Call (DNC) Registry’s protections apply to text messages; (3) encourages providers to make email-to-text a service that consumers must opt into; and (4) closes the lead generator loophole by prohibiting use of a single consumer consent to inundate consumers with unwanted texts and calls. The FCC declined to adopt text authentication requirements, finding that number spoofing in the texting domain is rare and that providers that originate texts generally permit their customers to initiate those texts only from numbers to which they are assigned. The new rules build on text message delivery restrictions put in place earlier this year and are informed by the FCC’s ongoing work against illegal robocalls. Mobile wireless service providers, entities that capture consumer information and sell it for sales leads, and text message senders are affected by the new rules and should be prepared to comply with the requirements once they become effective.

The Further Notice proposes a stronger message blocking requirement than what was adopted in the Order and seeks comment on other ways to require providers to block unwanted or illegal texts. The FCC seeks comment on message authentication and proposes to require rather than encourage providers to make email-to-text an opt-in service. Comments and reply comments on the proposals are due within 30 days and 45 days, respectively, of publication of the Further Notice in the Federal Register.

The Waiver Order permits providers to use the Reassigned Numbers Database (RND) to determine whether a number that the FCC has ordered to be blocked has been permanently disconnected.

Second Report and Order

Mandatory Message Blocking
Once the new rules are in effect, terminating mobile wireless providers will be required to block all messages from a certain number when notified by the Enforcement Bureau of illegal texts originating from that number and certify to the Bureau that blocking has begun. In contrast with the FCC’s call blocking rules, providers will not be required to block traffic that is “substantially similar” to the illegal message traffic identified by the Bureau. A Notification of Illegal Texts issued by the Bureau to a provider will include the originating number, the date of the illegal message, the basis for the Bureau’s determination that the identified messages are illegal, the FCC rules or other provisions the message violates, a direction to the provider that it must comply with the applicable provisions, and a point of contact for a subscriber to dispute blocking. Providers are not required to monitor whether any blocked numbers have been reassigned but are required to notify the FCC and cease blocking if the provider learns of a number reassignment. Mobile wireless service providers will have 180 days from the date of publication of the Order in the Federal Register to comply with the blocking rule.

Do-Not-Call Registry Applicability
The FCC extends its Do-Not-Call Registry protections to include text messages. Once effective, this rule will prohibit texters from sending marketing messages to a number in the DNC Registry without first obtaining an express invitation or consent from the text recipient. This shall be effective 30 days after publication of the Order in the Federal Register.

Email-to-Text Messages
The FCC encourages providers to make email-to-text an opt-in service. Commenters believe that email-to-text provides a greater level of anonymity to the sender and accounts for a significant percentage of fraudulent text messages.

The Lead Generator Loophole
The FCC’s rules will no longer allow texters or callers to solicit their business by robotexting or robocalling a consumer without first receiving the consumer’s prior express written consent, thereby closing the lead generator loophole. The FCC found that comparison shopping websites, where a consumer can compare goods, services and prices, are often the source of lead generation robocalls and robotexts. According to the FCC, consumers enter their contact information on such websites without realizing that they may, in fact, be consenting to contacts from multiple entities or that their contact information may be sold as a sales lead. Under the new rule, consumer consent must be given in response to a clear and conspicuous disclosure and the content of any subsequent robotext or robocall contact must be topically and logically associated with whatever website captured the consumer’s consent. Sharing consumer contact information (i.e., generating a sales lead) with a chain of partners without consumer consent is prohibited.

This rule, referred to as one-to-one consent, requires that a single consumer’s consent applies to contact from a single seller. For example, consumers on a comparison shopping website must affirmatively choose which sellers they consent to hear from. Consent can no longer be ascribed to a lengthy list of “marketing partners” that are either undisclosed or are buried in fine print. The FCC states that the rule is not intended to stifle or bar lead generation and continues to permit such contact by means of live callers and texters or by robocall or robotext with the appropriate consents. The FCC in the Further Notice asks how it can help businesses comply with this new one-to-one consent requirement. Sellers, texters and callers, and any third-party websites through which they obtain consent, will have 12 months from the date of publication of the Order in the Federal Register (or 30 days from Office of Management and Budget approval under the Paperwork Reduction Act, whichever is later) to make the changes necessary to comply with the new requirement.

Second Further Notice of Proposed Rulemaking

Text Blocking
The Further Notice seeks comment on expanding the text blocking obligation to include originating providers, and to require all immediate downstream providers to block texts from upstream providers that fail to block after FCC notification. The FCC also asks whether this blocking requirement should be based on telephone number, source, the “substantially similar” traffic standard, or some other standard. The FCC also seeks comment on blocking texts based on content-neutral reasonable analytics (similar to how providers block robocalls), and on the feasibility of traceback for text messaging. The FCC also seeks comment about other rules it could adopt to protect consumers from illegal texts and any additional protections needed in case of erroneous blocking.

Text Message Authentication and Traceback
While the FCC declined to adopt a message authentication requirement in the Order, it now seeks further comment, including whether spoofing is a problem in the texting ecosystem and how it might be prevented.

The FCC notes that traceback has played an important part in its fight against robocalls and asks whether it could play a role in stopping illegal robotexts, seeking comment on a requirement that mobile wireless providers to respond to text traceback requests within 24 hours.

Email-to-Text Messaging
The FCC proposes to require providers make email-to-text an opt-in service and asks whether such a requirement would noticeably reduce fraudulent texts.

Waiver Order
The FCC adopted a Waiver Order that allows mobile wireless providers to access the Reassigned Numbers Database (RND) to determine whether a number has been permanently disconnected since the date of the illegal text described in the related Notification of Illegal Texts. The RND allows callers to determine whether a telephone number has been disconnected and is no longer assigned to the party the caller wants to reach. The FCC encourages providers to determine whether a number has been reassigned to avoid blocking lawful texts from a different source using the reassigned number. A subsequent user of the number that had previously been used for illegal texts should not be subject to erroneous blocking. The waiver is effective for 12 months with authority delegated to the Consumer and Government Affairs Bureau to extend it, if necessary

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