For those regularly monitoring the FCC’s various TCPA dockets, you now have a new docket to follow: CG Docket No. 21-402. The FCC announced on September 27, 2022 that all Commissioners had voted to commence a new robotext proceeding, releasing the text of a Notice of Proposed Rulemaking (Notice) the same day. Comments and reply comments will be due 30 and 45 days respectively from the time a summary of the Notice is published in the Federal Register, which has not yet occurred as of the publication of this post.
In the Notice, the FCC states that it is receiving an increasing number of consumer complaints about fraudulent or scam texts and proposes to require wireless carriers to block “illegal” or “highly likely to be illegal” text messages at the network level “that purport to be from invalid, unallocated, or unused numbers, and numbers on a Do-Not-Originate (DNO) list.” If adopted, this blocking standard would be similar to the network-based call blocking that the FCC authorized in 2017 and has continued to refine in subsequent proceedings.
This Notice followed the public filing of a Report on the State of Text Messaging (Report) created by the FCC’s Consumer Advisory Committee (CAC) in August 2022. As directed by the FCC, that Report focused on five aspects of the text messaging ecosystem:
- The scope of the illegal and unwanted text problem
- How illegal and unwanted texts harm consumers and the best methods for consumers to avoid and/or manage these texts
- How the Commission should consider educating consumers on how they can evade such harms
- Whether and how illegal text messages pose a threat to emergency telephone numbers (g., PSAPs, hospitals and other emergency institutions) and how the commission can protect emergency call centers without negatively impacting legitimate emergency text messages
- How the Commission should consider accessibility concerns when developing solutions to combat unwanted text messages
The CAC’s main recommendation was that the FCC should “encourag[e] broader adoption of industry best practices, such as CTIA’s Messaging Principles and Best Practices.” For example, CTIA’s Best Practices state the expectation that businesses or other organizations will obtain consumer consent to receive text messages before they are sent. In June 2022, CTIA also released a new set of standards, the Messaging Security Best Practices, which underscored its recommendation that carriers and other registrars monitor Session Initiation Protocol (SIP) header anomalies and the volume of messages to determine whether to block text messages.
In various parts of the CAC’s Report, the advisory group consensus seemed to favor requiring consent “more broadly than the application of the TCPA” and suggested the use of texting volume as an indicator of spam or potentially unwanted messages. The apparent view is that the current voluntary nature of the CTIA’s standards makes them less effective in protecting consumers against illegal bulk texts. As some consumer-focused associations and carriers and their trade associations have been pushing for “greater adoption” of CTIA’s texting standards, it is notable that the CAC membership consisted mostly of wireless carriers, carrier trade associations and the National Consumer Law Center. These participants urged that those standards should no longer be voluntary but have the force of FCC rules.
Although this Notice did not directly examine the CAC Report recommendations, both documents show the FCC’s evolution from taking a hands-off market-oriented approach to abusive or illegal robotexting towards one that may create new regulations. The initiation of this new robotext blocking Notice recalls similar laudatory goals about protecting consumers from illegal calling in the FCC’s 2019 proceeding that adopted a “call blocking by default” framework. Despite broad support for the overall goal of that proceeding, many commenters pointed out that carriers’ and their analytics vendors’ unchecked autonomy to block calls would (and now have proven to) result in the blocking of legitimate calls that might “appear to be spammy.” In other words, implementation of broad frameworks that are not transparent and that do not fully consider all legitimate use cases will be problematic for entities that play by the rules but get blocked anyway. This may also prove to be the case with some texting patterns if the FCC moves ahead. Unfortunately, the FCC appears to skirt these concerns. The Notice only lightly touches on the point by stating: “[W]e believe the risk of erroneous blocking to be minimal” should the FCC determine to adopt its text blocking proposals.
The FCC’s contemplated safeguard fails to reflect some specific use cases and is high-level at best: “[A]ll tools that service providers use to determine whether a text is highly likely to be illegal be applied in a non-discriminatory, competitively and content-neutral manner.” The FCC invites further comments on “additional standards for blocking that may prevent blocking of legal, legitimate (and wanted) texts, particularly in the case of one-to-many text messages.” As examples of possible protections, the FCC suggests requiring the blocking wireless carrier to publish a single point of contact, requiring the terminating carrier to resolve disputes about caller ID authentication information within a reasonable time, and requiring the terminating carrier to promptly cease blocking when a texter makes a credible claim of erroneous blocking.
Additionally, the FCC also sought comments on issues that generally relate to the current state of the texting ecosystem to understand the effects of any new rules. These inquiries include questions about how severe the text spoofing problem really is, the extent of the wireless industry’s existing self-help in this area, and how the FCC might move to apply caller ID authentication standards to text messaging. The FCC noted that the Internet Engineering Task Force is considering a draft standard that applies some components of the STIR/SHAKEN framework to text messages and tentatively concluded that wireless carriers should implement caller ID authentication for text messages.
The Notice seeks comment on an appropriate legal theory to regulate the blocking of certain types of text messages as well as whether the FCC should direct the wireless carriers to block application-based text messages sent to wireless telephones. Readers may recall that the FCC classified text messaging as an information service rather than a telecommunications service in 2018. At that time the FCC expressed great satisfaction with the voluntary best practices of the wireless industry in protecting consumers from scams or illegal texts. However, even the Republican Commissioners voted in favor of adopting the Notice, suggesting that the agency feels a need to address the increasing number of complaints it is fielding on this issue. To that end, the FCC sought comments on various potential legal authorities that it could rely on to act, including its statutory authority over telephone numbering, the TCPA, and the Truth in Caller ID Act.
Interested parties are encouraged to submit public comments by the deadlines that will be announced by the upcoming Federal Register publication of the Notice. Faegre Drinker’s TCPA team will continue to monitor this docket and report on important developments as they unfold.
