Proposed Rule2023-13821
Prior Express Consent Under the Telephone Consumer Protection Act of 1991
Primary source
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Published
June 29, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) proposes measures to clarify and strengthen consumers' ability to revoke consent to receive both robocalls and robotexts. The Commission proposes to codify past guidance on prior express consent to make these requirements more apparent to callers and consumers. In addition, the Commission proposes to amend its rules to strengthen the ability of consumers to decide which robocalls and robotexts they wish to receive by exercising their right to grant and revoke consent to individual callers. Specifically, the Commission proposes to: ensure that revocation of consent does not require the use of specific words or burdensome methods; require that callers honor do-not-call and consent revocation requests within a reasonable time, not to exceed 24 hours of receipt; codify the ruling that consumers only need to revoke consent once to stop getting all robocalls and robotexts from a specific entity; and allow wireless consumers the option to stop robocalls and robotexts from their own wireless service provider.
Full Text
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[Federal Register Volume 88, Number 124 (Thursday, June 29, 2023)]
[Proposed Rules]
[Pages 42034-42040]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13821]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 124 / Thursday, June 29, 2023 /
Proposed Rules
[[Page 42034]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; FCC 23-49; FR ID 149026]
Prior Express Consent Under the Telephone Consumer Protection Act
of 1991
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) proposes measures to clarify and strengthen consumers'
ability to revoke consent to receive both robocalls and robotexts. The
Commission proposes to codify past guidance on prior express consent to
make these requirements more apparent to callers and consumers. In
addition, the Commission proposes to amend its rules to strengthen the
ability of consumers to decide which robocalls and robotexts they wish
to receive by exercising their right to grant and revoke consent to
individual callers. Specifically, the Commission proposes to: ensure
that revocation of consent does not require the use of specific words
or burdensome methods; require that callers honor do-not-call and
consent revocation requests within a reasonable time, not to exceed 24
hours of receipt; codify the ruling that consumers only need to revoke
consent once to stop getting all robocalls and robotexts from a
specific entity; and allow wireless consumers the option to stop
robocalls and robotexts from their own wireless service provider.
DATES: Comments are due on or before July 31, 2023, and reply comments
are due on or before August 14, 2023.
ADDRESSES: You may submit comments, identified by CG Docket No. 02-278,
by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="https://apps.fcc.gov/ecfs/">https://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
FOR FURTHER INFORMATION CONTACT: Richard D. Smith of the Consumer and
Governmental Affairs Bureau at (717) 338-2797 or <a href="/cdn-cgi/l/email-protection#6c3e050f040d1e08423f010518042c0a0f0f420b031a"><span class="__cf_email__" data-cfemail="d98bb0bab1b8abbdf78ab4b0adb199bfbabaf7beb6af">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), in CG Docket No. 02-278, FCC 23-49,
adopted on June 8, 2023 and released on June 9, 2023. The full text of
the document is available for public inspection and copying via the
Commission's Electronic Comment Filing System (ECFS). To request
materials in accessible formats for people with disabilities (Braille,
large print, electronic files, audio format), send an email to
<a href="/cdn-cgi/l/email-protection#10767373252024507673733e777f66"><span class="__cf_email__" data-cfemail="bbddd8d88e8b8ffbddd8d895dcd4cd">[email protected]</span></a> or call the Consumer and Governmental Affairs Bureau at
202-418-0530 (voice).
This matter shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. 47 CFR
1.1200 through 1.1216. Persons making oral ex parte presentations are
reminded that memoranda summarizing the presentations must contain
summaries of the substances of the presentations and not merely a
listing of the subjects discussed. More than a one or two sentence
description of the views and arguments presented is generally required.
See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex
parte presentations in permit-but-disclose proceedings are set forth in
Sec. 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).
Initial Paperwork Reduction Act of 1995 Analysis
The NPRM seeks comment on proposed rule amendments that may result
in modified information collection requirements. If the Commission
adopts any modified information collection requirements, the Commission
will publish a notice in the Federal Register inviting the public to
comment on the requirements, as required by the Paperwork Reduction
Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to
the Small Business Paperwork Relief Act of 2002, the Commission seeks
comment on how it might further reduce the information collection
burden for small business concerns with fewer than 25 employees. Public
Law 107-198; 44 U.S.C. 3506(c)(4).
Synopsis
1. The Commission initiates this proceeding to clarify and
strengthen consumers' rights under the TCPA to grant and revoke consent
to receive robocalls and robotexts. Specifically, the Commission
proposes to: (1) ensure that revocation of consent does not require the
use of specific words or burdensome methods; (2) require that callers
honor do-not-call and consent revocation requests within a reasonable
time, not to exceed 24 hours of receipt; (3) codify the ruling that
consumers only need to revoke consent once to stop getting all
robocalls and robotexts from a specific entity; and (4) allow wireless
consumers the option to stop robocalls and robotexts from their own
wireless service provider. As discussed below,
[[Page 42035]]
the Commission seeks comment on these proposals and on the costs and
benefits of the proposals, including for smaller businesses and
consumers.
A. Revoking Consent in Any Reasonable Way
2. The Commission proposes to codify its 2015 ruling confirming
that consumers who have provided prior express consent to receive
autodialed or prerecorded voice calls may revoke such consent through
any reasonable means. See Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC
Docket No. 07-135, Declaratory Ruling and Order, published at 80 FR
61129, October 9, 2015. The Commission believes this will make clearer
to callers and consumers that a consumer has a right to revoke consent
under the TCPA. Specifically, the Commission proposes codifying a rule
that would make clear that consumers may revoke prior express consent
in any reasonable manner that clearly expresses a desire not to receive
further calls or text messages, including using words such as ``stop,''
``revoke,'' ``end,'' or ``opt out,'' and that callers may not infringe
on that right by designating an exclusive means to revoke consent that
precludes the use of any other reasonable method. The Commission seeks
comment on this proposal.
3. Additionally, the Commission proposes to codify that reasonable
methods to revoke consent typically include revocation requests made by
text message, voicemail, or email to any telephone number or email
address at which the consumer can reasonably expect to reach the
caller. The Commission proposes to codify that, when a consumer uses
any such method to revoke consent, doing so creates a presumption that
the consumer has revoked consent, absent evidence to the contrary. For
example, the use of reply text messages is a reasonable and widely
recognized means for text recipients to revoke prior consent to text
messages. The sending of a ``STOP'' message in reply to an incoming
text message is the standard recommended by industry groups such as the
Mobile Marketing Association. In addition, text messages may, on
occasion, inadvertently be directed to reassigned or wrong numbers. In
these instances, the text recipient may have no contact information
other than the text itself, since the recipient is not the party that
provided prior consent to the sender, and the only method they may have
to contact the sender is with a reply text message. Thus, the
Commission proposes to codify that the sending of ``STOP'' or a similar
message that reasonably conveys a desire to not receive further
messages in reply to an incoming text message creates a presumption
that the consumer has revoked consent in a reasonable way. Should the
text initiator choose to use a texting protocol that does not allow
reply texts, we propose that it would bear the risk of potential
liability under the TCPA unless it both provides a clear and
conspicuous disclosure on each text to the consumer that two-way
texting is not available due to technical limitations of the texting
protocol and clearly and conspicuously provides alternative ways for a
consumer to revoke consent, such as a link or instructions to text a
different number. The Commission seeks comment on these proposed rules.
4. The Commission believes that these proposed rules are consistent
with the Commission's prior finding that placing significant burdens on
the called party who no longer wishes to receive such calls or texts is
inconsistent with the TCPA and with our finding that the TCPA requires
``only that the called party clearly express his or her desire not to
receive further calls'' to invoke this right to revoke consent. The
Commission seeks comment on whether callers have encountered any
difficulties in complying with this longstanding precedent that
consumers can revoke consent via any reasonable method. Based on this
experience, are there specific issues or circumstances that have arisen
that the Commission should address in the context of this proceeding to
provide clarity as to the factors that make the means of revocation
``reasonable'' both from a consumer's perspective and that of a caller?
Has the Commission struck an appropriate balance here between
protecting the consumer's privacy interests and facilitating the
caller's ability to process opt-out requests?
5. The Commission also recognizes that the scope of a
``reasonable'' means to revoke consent is not unlimited. The Commission
seeks comment on any such limitations it should codify. What are the
most common situations in which callers are unable to process opt-out
requests from consumers? Are there ways that the Commission could
address these situations in this proceeding consistent with its goal
not to place an unreasonable burden on consumers to opt out of
robocalls? The Commission proposes to codify that callers that do not
believe that consumers have used a reasonable method to convey a
request to revoke consent will be afforded an opportunity to rebut the
presumption on a case-by-case basis, should a complaint be filed with
the Commission or finder of fact. The Commission seeks comment on the
types of evidence that would suffice to rebut the presumption. For
example, if the consumer directs the request to a telephone number or
email address, and the caller presents evidence that the consumer lacks
a reasonable basis to expect that the request will be received by it,
should the Commission hold that such a method to revoke consent is not
in fact reasonable? The Commission believes such a rule would balance
the consumer's right to revoke consent in an easy and reasonable manner
with the caller's ability to process such revocation requests. The
Commission seeks comment on this proposal, including any impact on
small entities.
B. Timeframe for Honoring a Do-Not-Call or Revocation Request
6. The Commission proposes to require that, within 24 hours of
receipt, callers must honor company-specific do-not-call and
revocation-of-consent requests for robocalls and robotexts that are
subject to the TCPA. The Commission's rules currently provide no
specific timeframes for honoring revocation-of-consent requests for
robocalls and robotexts made to residential or wireless telephone
numbers. The Commission's rules currently require callers making
telemarketing calls or exempted artificial and prerecorded voice calls
to residential telephone numbers and exempted package delivery calls
and texts to wireless consumers to honor do-not-call requests within a
reasonable time not to exceed 30 days from the date of any such
request. This proposal will require amending those existing rules and
establishing new rules where no specific timeframe for honoring such
requests currently exists. The Commission seeks comment on this
proposal, including on the 24-hour period. Is this period reasonable?
Should the Commission, rather, require that revocations be honored
immediately upon receipt or consider some other timeframe?
7. Consumers are understandably frustrated when they receive
robocalls and robotext messages days or even weeks following a request
to stop such communications. Such delays also undermine a consumer's
right to determine which robocalls and robotexts they wish to receive
under the privacy protections afforded by the TCPA. In addition, the
Commission believes that advances in technology over the years,
including automated and interactive technologies, have made the
[[Page 42036]]
processing of do-not-call and consent revocation requests more
efficient and timely than in the past. The Commission believes that
such technological advances provide callers and senders of text
messages with the tools they need to process all do-not-call and
consent revocation requests in near real time. The Commission seeks
comment on these beliefs.
8. Consistent with the conditions imposed on other calls to
wireless telephone numbers that are exempt from the prior-express-
consent requirement, the Commission also proposes to amend its rules
for exempted package delivery calls to require that such callers honor
an opt-out request immediately. This proposal will place such callers
on an equal footing with other categories of callers that have been
granted an exemption to call wireless telephone numbers without prior
express consent. Alternatively, is there any reason that package
delivery calls should continue to be treated differently from other
exempted callers to allow for up to 30 days to honor an opt-out
request? The Commission believes these proposals will provide consumers
with certainty that their do-not-call and consent revocation requests
are honored in a timely manner, enhancing the ability of consumers to
stop unwanted robocalls and robotexts. The Commission seeks comment on
these proposals, including any burdens this may impose on callers,
including small entities.
C. Revocation Confirmation Text Message
9. The Commission proposes to codify the Soundbite Declaratory
Ruling clarifying that a one-time text message confirming a consumer's
request that no further text messages be sent does not violate the TCPA
or the Commission's rules as long as the confirmation text merely
confirms the called party's opt-out request and does not include any
marketing or promotional information, and the text is the only
additional message sent to the called party after receipt of the opt-
out request. In the Soundbite Declaratory Ruling, the Commission noted
that ``confirmation messages ultimately benefit and protect consumers
by helping to ensure, via such confirmation, that the consumer who
ostensibly opted out in fact no longer wishes to receive text messages
from entities from whom the consumer previously expressed an
affirmative desire to receive such messages.'' The Commission believes
that codifying this ruling will better ensure that both text senders
and recipients are aware of it, including the limitations imposed on
such one-time confirmation text messages. The Commission seeks comment
on this proposal. In the time since it went into effect, have callers
or consumers encountered any issues not addressed in the Soundbite
Declaratory Ruling?
10. The Commission also proposes to codify that senders can include
a request for clarification in the one-time confirmation text, provided
the sender ceases all further robocalls and robotexts absent an
affirmative response from the consumer that they wish to receive
further communications from the sender. The Commission further propose
that a lack of any response to the confirmation call or text must be
treated by the sender as a revocation of consent for all robocalls and
robotexts from the sender. It does so in response to Capital One's
petition seeking confirmation that the text sender may request
clarification in its one-time confirmation message of the scope of the
recipient's revocation request when that recipient has consented to
receiving multiple categories of informational messages from the
sender. The Commission notes that banks and financial institutions
support Capital One's request, indicating that consumers often consent
to receive multiple categories of informational messages and that opt-
out requests in these situations can be ambiguous as to whether the
request applies to all or just certain types of those messages.
Consumer groups have also expressed support for Capital One's request,
provided that a lack of any response to the confirmation text message
must be interpreted by the sender to mean that the consumer's
revocation request was intended to encompass all robocalls and
robotexts and the sender must therefore cease all further robocalls and
robotexts to that consumer absent further clarification from the
consumer. The Commission seeks further comment on any additional issues
not fully addressed in the record.
11. Consistent with the Soundbite Declaratory Ruling and Capital
One's request, the Commission proposes to codify that any such
clarification message must not contain any marketing or advertising
content or seek to persuade the recipient to reconsider their opt-out
decision. Rather, this proposed clarification is strictly limited to
informing the recipient of the scope of the opt-out request absent some
further confirmation from the consumer that they wish to continue
receiving certain categories of text messages from the sender. The
Commission seeks comment on this limitation.
12. The Commission proposes to emphasize that this confirmation
text message is limited to a final one-time text message absent an
affirmative response from the consumer that they wish to continue to
receive certain categories of informational calls or text messages from
the sender. The Commission proposes that, in the absence of any such
affirmative response, no further robocalls or robotexts can be made to
this consumer. In addition, the Commission proposes that a ``STOP''
text sent in response to the one-time request for confirmation does not
then allow the text sender to send another request for further
clarification. As noted above, both industry and consumer groups
support this proposal. Does the record fully address the views of all
parties?
13. The Commission seeks comment on these proposals and any other
related issues, such as any impact on smaller entities. Is this the
appropriate limit to put on the clarification from the Soundbite
Declaratory Ruling? Are there other limitations the Commission should
impose to protect consumers' rights to opt out of text messages yet
ensure callers' ability to correctly interpret consumers' intent in
revoking consent? Should the Commission instead decline to offer the
clarification Capital One seeks?
D. Wireless Carrier Calls to Subscribers
14. The Commission proposes to require wireless providers to honor
their customers' requests to cease autodialed, prerecorded voice, and
artificial voice calls, and autodialed texts. To effectuate this
change, the Commission proposes to alter our prior ruling to require
wireless providers to subject such calls to certain conditions that
protect the privacy interests of subscribers.
15. In 1992, the Commission concluded that wireless carriers need
not obtain consent prior to initiating autodialed, artificial voice, or
prerecorded voice calls to their own subscribers because such
communications were not charged to the called party. See Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991,
CC Docket No. 92-90, Report and Order, published at 57 FR 48333,
October 23, 1992. Following this ruling, Congress amended the TCPA to
grant the Commission express statutory authority to exempt from the
prior-express-consent requirement calls to wireless numbers that are
not charged to the called party subject to such conditions as the
Commission deems necessary to protect the privacy rights afforded under
the TCPA. As a result, the ability of wireless carriers to call their
own subscribers without prior
[[Page 42037]]
express consent, where the consumer is not charged for the call, was
based on the language of Sec. 227(b)(1)(A)(iii) and was not a creation
of a Sec. 227(b)(2)(C) exemption; therefore, the Commission has not
subjected this ability to conditions to protect the privacy rights of
wireless subscribers that the Commission has imposed in other analogous
situations where callers have been granted an exemption to make
robocalls or send robotexts to wireless numbers without prior express
consent.
16. This situation has created disagreements as to whether the
Commission has authority to impose an opt-out requirement on
communications from wireless service providers to their customers. Two
wireless subscribers filed petitions seeking clarification that they
can revoke consent to receive calls and messages from their wireless
provider after such a request to stop such communications was denied by
their wireless providers. In response to requests for comments on these
petitions, wireless providers and organizations opposed the relief
sought, arguing that the TCPA's prohibitions do not apply to
communications from wireless providers to their customers because there
is no charge to the subscribers for calls and messages to them. As a
result, these commenters contend, there is no prior consent to be
revoked because prior express consent is not required to make such
calls under the TCPA. The Commission seeks comment on these
considerations in the context of its proposed exemption.
17. The Commission proposes to revisit the 1992 ruling that
``cellular carriers need not obtain additional consent from their
cellular subscribers prior to initiating autodialer and artificial and
prerecorded message calls for which the cellular subscriber is not
charged.'' Instead of that blanket exemption for all wireless calls for
which the subscriber is not charged, the Commission proposes to create
and codify a qualified exemption--based on its authority under Sec.
227(b)(2)(C)--for informational robocalls and robotexts from wireless
providers to their subscribers. More specifically, those calls would be
exempt from the prior-express-consent requirement if, and only if,
certain conditions are satisfied. As noted, the Commission has
exercised this statutory authority to recognize certain limited
exemptions in other analogous situations where such calls also are made
without a charge to the called party. The Commission notes that Sec.
227(b)(2)(C)'s authority to grant exemptions from the prior-express-
consent requirement is predicated on the ability of callers to make
such calls with no charge to the consumer. The Commission believes that
requirement would be meaningless if all such calls or texts were deemed
to be wholly outside the prior express consent requirement merely
because they were free to the end user, as some wireless providers have
argued. Consistent with Sec. 227(b)(2)(C), which permits the
Commission to impose such conditions it deems necessary in the interest
of privacy, the Commission proposes conditions that are similar to
those it imposed to protect the privacy interests of consumers in other
situations where it has recognized an exemption from the prior-express-
consent requirement for robocalls to wireless telephone numbers. The
proposed conditions are as follows:
(A) voice calls and text messages are initiated by a wireless
service provider only to an existing subscriber of that wireless
service provider at a number maintained by the wireless service
provider;
(B) voice calls and text messages must state the name and contact
information of the wireless provider (for voice calls, these
disclosures must be made at the beginning of the call);
(C) voice calls and text messages must not include any
telemarketing, solicitation, or advertising;
(D) voice calls and text messages must be concise, generally one
minute or less in length for voice calls or 160 characters or less in
length for text messages;
(E) a wireless service provider may initiate a maximum of three
voice calls or text messages during any 30-day period;
(F) a wireless service provider must offer recipients within each
message an easy means to opt out of future such messages; voice calls
that could be answered by a live person must include an automated,
interactive voice- and/or key press-activated opt-out mechanism that
enables the call recipient to make an opt-out request prior to
terminating the call; voice calls that could be answered by an
answering machine or voice mail service must include a toll-free number
that the consumer can call to opt out of future calls; text messages
must inform recipients of the ability to opt out by replying ``STOP'';
and,
(G) a wireless service provider must honor opt-out requests
immediately.
18. The Commission believes such an exemption, subject to the
conditions imposed above, balances the privacy interests of the TCPA
with the legitimate interests of wireless providers in communicating
with their own subscribers. And because the TCPA only restricts calls
initiated with an autodialer or using an artificial or prerecorded
voice to a wireless telephone number, wireless providers can use a live
agent or equipment that does not constitute an autodialer to make such
calls or send texts without running afoul of the TCPA. In addition, the
Commission proposes that wireless providers have the option to obtain
the prior express consent of their subscribers to avoid the need to
rely on this exemption and its accompanying conditions, including the
numerical limits imposed on such exempted calls. The Commission seeks
comment on these conditions. Are further conditions needed for calls
from a wireless service provider to its subscribers? Alternatively, the
Commission seeks comment on any benefits consumers receive from calls
or messages that may be lost as a consequence of an opt-out or limit on
the number of calls or messages sent. Are there any potential drawbacks
for consumers to the conditions proposed? If so, should the Commission
modify its proposed conditions to account for any such drawbacks?
19. Lastly, the Commission believes such an exemption satisfies the
obligations of Sec. 8 of the TRACED Act. Specifically, the class of
parties that may make such exempted calls in these situations is
strictly limited to the wireless service provider. The class of parties
that may be called is limited to an existing subscriber of a wireless
service provider, and the number of such calls and messages is limited
to three calls within any 30-day period. To the extent that there are
any calls or texts that wireless service providers are mandated to make
to their subscribers pursuant to any federal or state law, the
Commission seeks comment on whether such calls or texts should not be
counted toward the numerical limit of such communications that are
imposed in the 30-day timeframe. The Commission seeks comment on this
proposal, including any burdens this proposal may impose on wireless
providers, including small entities.
E. Legal Authority
20. The Commission tentatively concludes that its legal authority
for the proposed rules contained herein derives from Sec. Sec. 154 and
227 of the Communications Act of 1934, as amended (the Act). The
Commission further proposes to rely on its authority under Sec. 8 of
the TRACED Act to establish limitations on the proposed exemption for
wireless providers from the TCPA's prior-express-consent requirement.
As discussed above, the Commission as the expert agency on the
[[Page 42038]]
TCPA has addressed issues relating to prior express consent by robocall
consumers on numerous occasions. The Commission believes that these
sources grant it sufficient authority to adopt the proposed rules
contained herein, and it seeks comment on this conclusion. Are there
any other sources of legal authority the Commission should rely on? Do
any of these sources of authority not apply to the rules it proposes?
F. Proposed Effective Date
21. The Commission proposes that the rule changes set forth herein
go into effect upon publication of an Order in the Federal Register, or
for those rules that require OMB review under the Paperwork Reduction
Act, upon OMB approval and publication of the notice of approval in the
Federal Register. The Commission seeks comment on whether this proposed
timeline provides a sufficient opportunity for affected parties to
comply with any new requirements imposed by the proposed rules or
whether a longer implementation period is warranted. The Commission
also seeks comment on whether these effective dates should be the same
for all affected parties, or whether it should provide more time for
small entities to comply.
Initial Regulatory Flexibility Analysis
22. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this Notice of Proposed Rulemaking (NPRM). Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments
on the NPRM provided on the first page of this document. The Commission
will send a copy of the NPRM, including this IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration. In addition, the
NPRM and IRFA (or summaries thereof) will be published in the Federal
Register.
A. Need for, and Objectives of, the Proposed Rules
23. The NPRM seeks comment on proposals to clarify and strengthen
the right of consumers to grant or revoke consent to receive robocalls
and robotexts under the TCPA. Under the Telephone Consumer Protection
Act of 1991 (TCPA), certain types of calls and texts may only be sent
with the prior express consent of the called party. The ability of
consumers to exercise this right to provide or revoke consent is
essential to protecting the privacy rights of consumers by allowing
them to decide which callers may communicate with them via robocalls
and robotexts.
24. The NPRM proposes to codify prior Commission rulings and adopt
new requirements to ensure that the requirements relating to providing
or revoking consent under the TCPA are clear to both callers and
consumers. Specifically, the NPRM proposes to make clear that consumers
may revoke prior express consent in any reasonable manner that clearly
expresses a desire not to receive further calls or text messages,
including using words such as ``stop,'' ``revoke,'' ``end,'' or ``opt
out,'' and that callers may not infringe on that right by designating
an exclusive means to revoke consent that precludes the use of any
other reasonable method. The NPRM also proposes to require that callers
honor do-not-call and revocation requests within a reasonable time not
to exceed 24 hours of receipt. Further, the NPRM reiterates that
consumers only need to revoke consent once to stop getting all calls
and texts from a specific entity. It also proposes to codify that a
one-time text message confirming a consumer's request that no further
text messages be sent does not violate the TCPA or the Commission's
rules as long as the confirmation text merely confirms the called
party's opt-out request, does not include any marketing or promotional
information, and the text is the only additional message sent to the
called party after receipt of the opt-out request. Finally, the NPRM
proposes to require wireless providers to honor a customer's request to
cease autodialed, prerecorded voice, and artificial voice calls, and
automated texts.
B. Legal Basis
25. The proposed rules are authorized under Sec. Sec. 4(i), 4(j),
and 227 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 227, and Sec. 8 of the TRACED Act.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
26. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. A ``small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
27. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission's actions, over time, may affect small
entities that are not easily categorized at present. The Commission
therefore describes, at the outset, three broad groups of small
entities that could be directly affected herein. First, while there are
industry specific size standards for small businesses that are used in
the regulatory flexibility analysis, according to data from the Small
Business Administration's (SBA) Office of Advocacy, in general a small
business is an independent business having fewer than 500 employees.
These types of small businesses represent 99.9% of all businesses in
the United States, which translates to 32.5 million businesses.
28. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2020, there were
approximately 447,689 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
29. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate there were
90,075 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,931 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 12,040 special purpose governments--independent school districts
with enrollment populations of less than 50,000. Accordingly, based on
the 2017 U.S. Census of Governments data, the Commission estimates that
at least 48,971 entities fall into the category of ``small governmental
jurisdictions.''
30. Telemarketing Bureaus and Other Contact Centers. This industry
[[Page 42039]]
comprises establishments primarily engaged in operating call centers
that initiate or receive communications for others-via telephone,
facsimile, email, or other communication modes-for purposes such as (1)
promoting clients products or services, (2) taking orders for clients,
(3) soliciting contributions for a client, and (4) providing
information or assistance regarding a client's products or services.
These establishments do not own the product or provide the services
they are representing on behalf of clients. The SBA small business size
standard for this industry classifies firms having $16.5 million or
less in annual receipts as small. According to U.S. Census Bureau data
for 2017, there were 2,250 firms in this industry that operated for the
entire year. Of this number 1,435 firms had revenue of less than $10
million. Based on this information, the majority of firms in this
industry can be considered small under the SBA small business size
standard.
31. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 594
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 511
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
32. In cases where consumers invoke their right to grant or revoke
consent to small entity callers to receive robocalls and robotexts
under the TCPA, these callers may need to implement new methods to
record and track such requests to honor them within the specified
timeframes. At this time however, the Commission is not in a position
to determine whether, if adopted, its proposals and the matters upon
which it seeks comment will require small entities to hire
professionals to comply, and cannot quantify the cost of compliance
with the potential rule changes discussed herein. It anticipates the
information it receives in comments including where requested, cost and
benefit analyses, will help the Commission identify and evaluate
additional relevant compliance matters for small entities, including
compliance costs and other burdens that may result from the proposals
and inquiries it makes in the NPRM.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
33. The RFA requires an agency to describe any significant
alternatives, specifically small business alternatives, that it has
considered in reaching its proposed approach, which may include the
following four alternatives (among others): ``(1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for such small entities; (3) the
use of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
34. The NPRM specifically seeks comment on any costs or burdens
imposed on callers to implement any of the proposals set forth in the
NPRM which could help the Commission identify burdens for small
entities and other actions that can be taken to minimize impact on
small entities. For example, the NPRM proposes and seeks comment on
what constitutes a ``reasonable'' manner to revoke consent, noting that
it is not without limitation. An alternative consideration is whether
callers will have an opportunity to demonstrate that a consumer has not
used a reasonable means to convey their revocation of consent request.
Allowing this flexibility may reduce the burden on small entities'
ability to respond to process revocation requests. The NPRM considers
any compliance costs for small businesses if the proposed rules are
adopted and seeks comment on ways to minimize any such burdens. The
NPRM also proposes that callers must honor do-not-call and revocation
requests within 24-hours, and seeks comment on whether other timeframes
should be considered, including whether small entities may benefit from
longer timeframes to implement these requests. Many of the requirements
noted in the NPRM have been adopted by the Commission in rulings that
date back many years. As a result, the Commission anticipates that many
callers have already made efforts to comply with these obligations and
may have no new burdens.
35. The Commission expects to consider the economic impact on small
entities, as identified in comments filed in response to the NPRM and
this IRFA, in reaching its final conclusions and taking action in this
proceeding.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
36. None.
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220,
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262,
276, 403(b)(2)(B), (c), 616, 617, 620, 1401-1473, unless otherwise
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.
Subpart L--Restrictions on Telemarketing, Telephone Solicitations,
and Facsimile Advertising
0
2. Section 64.1200 is amended by revising paragraph (a)(9)(i)(F) and
adding paragraphs (a)(9)(v), (10), and (11) and revising paragraph
(d)(3) to read as follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(a) * * *
(9) * * *
(i) * * *
(F) The package delivery company must offer package recipients the
ability to opt out of receiving future delivery notification calls and
messages and
[[Page 42040]]
must honor an opt-out request immediately; and,
* * * * *
(v) Calls made by a wireless service provider to an existing
subscriber, provided that all of the following conditions are met:
(A) voice calls and text messages are initiated by a wireless
service provider only to an existing subscriber of that wireless
service provider at a number maintained by the wireless service
provider;
(B) voice calls and text messages must state the name and contact
information of the wireless provider (for voice calls, these
disclosures must be made at the beginning of the call);
(C) voice calls and text messages must not include any
telemarketing, solicitation, or advertising;
(D) voice calls and text messages must be concise, generally one
minute or less in length for voice calls or 160 characters or less in
length for text messages;
(E) a wireless service provider may initiate a maximum of three
voice calls or text messages during any 30-day period;
(F) a wireless service provider must offer recipients within each
message an easy means to opt out of future such messages; voice calls
that could be answered by a live person must include an automated,
interactive voice- and/or key press-activated opt-out mechanism that
enables the call recipient to make an opt-out request prior to
terminating the call; voice calls that could be answered by an
answering machine or voice mail service must include a toll-free number
that the consumer can call to opt out of future calls; text messages
must inform recipients of the ability to opt out by replying ``STOP'';
and,
(G) a wireless service provider must honor opt-out requests
immediately.
* * * * *
(10) A called party may revoke prior express consent, including
prior express written consent, to receive calls or text messages made
pursuant to paragraphs (a)(1) through (3) of this section by using any
reasonable method to clearly express a desire not to receive further
calls or text messages from the caller or sender. The use of text
message, voicemail, or email to any telephone number or email address
at which the consumer can reasonably expect to reach the caller to
revoke consent creates a rebuttable presumption that the consumer has
revoked consent absent evidence to the contrary. The sending of
``STOP'' or a similar text message that reasonably conveys a desire to
not receive further messages in reply to an incoming text message
creates a presumption that the consumer has revoked consent in a
reasonable way. Callers or senders of text messages covered by
paragraphs (a)(1) through (3) of this section may not designate an
exclusive means to request revocation of consent. Should the text
initiator choose to use a texting protocol that does not allow reply
texts, it must provide a clear and conspicuous disclosure on each text
to the consumer that two-way texting is not available due to technical
limitations of the texting protocol, and clearly and conspicuously
provide reasonable alternative ways to revoke consent. All requests to
revoke prior express consent or prior express written consent made in
any reasonable manner must be honored in a reasonable time not to
exceed 24 hours from receipt of such request.
(11) A one-time text message confirming a request to revoke consent
from receiving any further text messages does not violate paragraphs
(a)(1) through (2) of this section as long as the confirmation text
merely confirms the text recipient's revocation request and does not
include any marketing or promotional information, and is the only
additional message sent to the called party after receipt of the
revocation request. To the extent that the text recipient has consented
to several categories of text messages from the text sender, the
confirmation message may request clarification as to whether the
revocation request was meant to encompass all such messages; the sender
must cease all further texts absent further clarification that the
recipient wishes to continue to receive certain text messages.
* * * * *
(d) * * *
(3) Recording, disclosure of do-not-call requests. If a person or
entity making an artificial or prerecorded-voice telephone call
pursuant to an exemption under Sec. 64.1200(a)(3)(ii) through (v) or
any call for telemarketing purposes (or on whose behalf such a call is
made) receives a request from a residential telephone subscriber not to
receive calls from that person or entity, the person or entity must
record the request and place the subscriber's name, if provided, and
telephone number on the do-not-call list at the time the request is
made. Persons or entities making such calls (or on whose behalf such
calls are made) must honor a residential subscriber's do-not-call
request within a reasonable time from the date such request is made.
This period may not exceed 24 hours from the receipt of such request.
If such requests are recorded or maintained by a party other than the
person or entity on whose behalf the call is made, the person or entity
on whose behalf the call is made will be liable for any failures to
honor the do-not-call request. A person or entity making an artificial
or prerecorded-voice telephone call pursuant to an exemption under
Sec. 64.1200(a)(3)(ii) through (v) or any call for telemarketing
purposes must obtain a consumer's prior express permission to share or
forward the consumer's request not to be called to a party other than
the person or entity on whose behalf a call is made or an affiliated
entity.
* * * * *
[FR Doc. 2023-13821 Filed 6-28-23; 8:45 am]
BILLING CODE 6712-01-P
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</html>Indexed from Federal Register on June 29, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.