Rule2023-28832
Targeting and Eliminating Unlawful Text Messages, Implementation of the Telephone Consumer Protection Act of 1991, Advanced Methods To Target and Eliminate Unlawful Robocalls
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 26, 2024
Effective
March 26, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) requires terminating mobile wireless providers to block text messages from a particular number following notification from the Commission. The Commission also codifies that the National Do-Not-Call (DNC) Registry's protections extend to text messages. In addition, the Commission encourages mobile wireless providers to make email-to-text, a major source of illegal texts, a service that consumers proactively opt into. The Commission closes the lead generator loophole by requiring comparison shopping websites to get consumer consent one seller at a time, if prior express written consent is required under the Telephone Consumer Protection Act (TCPA), and thus prohibits abuse of consumer consent by such websites. Finally, the Commission adopts a limited waiver to allow providers to use the Reassigned Numbers Database (RND) to determine whether a number that the Commission has ordered to be blocked has been permanently disconnected. Such waiver will help prevent blocking of lawful texts from a new subscriber to the number.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 18 (Friday, January 26, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Rules and Regulations]
[Pages 5098-5105]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28832]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0 and 64
[CG Docket Nos. 21-402, 02-278, 17-59; FCC 23-107; FR ID 194243]
Targeting and Eliminating Unlawful Text Messages, Implementation
of the Telephone Consumer Protection Act of 1991, Advanced Methods To
Target and Eliminate Unlawful Robocalls
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) requires terminating mobile wireless providers to block
text messages from a particular number following notification from the
Commission. The Commission also codifies that the National Do-Not-Call
(DNC) Registry's protections extend to text messages. In addition, the
Commission encourages mobile wireless providers to make email-to-text,
a major source of illegal texts, a service that consumers proactively
opt into. The Commission closes the lead generator loophole by
requiring comparison shopping websites to get consumer consent one
seller at a time, if prior express written consent is required under
the Telephone Consumer Protection Act (TCPA), and thus prohibits abuse
of consumer consent by such websites. Finally, the Commission adopts a
limited waiver to allow providers to use the Reassigned Numbers
Database (RND) to determine whether a number that the Commission has
ordered to be blocked has been permanently disconnected. Such waiver
will help prevent blocking of lawful texts from a new subscriber to the
number.
DATES: This rule is effective March 26, 2024, except for the amendment
to 47 CFR 64.1200(s), in instruction 5, which is effective July 24,
2024, and the amendment to 47 CFR 64.1200(f)(9), in instruction 6,
which is effective January 27, 2025.
FOR FURTHER INFORMATION CONTACT: Jerusha Burnett of the Consumer Policy
Division, Consumer and Governmental Affairs Bureau, at
<a href="/cdn-cgi/l/email-protection#fb919e898e88939ad5998e89959e8f8fbb9d9898d59c948d"><span class="__cf_email__" data-cfemail="1e747b6c6b6d767f307c6b6c707b6a6a5e787d7d30797168">[email protected]</span></a>, 202 418-0526, or Mika Savir of the Consumer
Policy Division, Consumer and Governmental Affairs Bureau, at
<a href="/cdn-cgi/l/email-protection#89e4e0e2e8a7fae8ffe0fbc9efeaeaa7eee6ff"><span class="__cf_email__" data-cfemail="375a5e5c56194456415e457751545419505841">[email protected]</span></a> or (202) 418-0384.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order and Waiver Order, in CG Docket Nos. 21-402, 02-278,
and 17-59, FCC 23-107, adopted on December 13, 2023, and released on
December 18, 2023. The full text of this document is available online
at <a href="https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf</a>. To request
this document in accessible formats for people with disabilities (e.g.,
Braille, large print, electronic files, audio format) or to request
reasonable accommodations (e.g., accessible format documents, sign
language interpreters, CART), send an email to <a href="/cdn-cgi/l/email-protection#7e181d1d4b4e4a3e181d1d50191108"><span class="__cf_email__" data-cfemail="d2b4b1b1e7e2e692b4b1b1fcb5bda4">[email protected]</span></a> or call
the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530.
Congressional Review Act
The Commission sent a copy of document FCC 23-107 to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
Final Paperwork Reduction Act of 1995 Analysis
This document may contain new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. This document will be submitted to the Office of
Management and Budget (OMB) for review under section 3507(d) of the
PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the new or modified information collection
requirements contained in this proceeding.
Synopsis
1. Mandatory Blocking Following Commission Notification. In the
Second Report and Order, the Commission adopts, with some modification,
proposals in the Further Notice of Proposed Rulemaking (FNPRM),
published at 88 FR 21497 on April 11, 2023. First, the Commission
specifically requires terminating mobile wireless providers to block
all text messages from a particular number following notification from
the Commission of illegal texts from that number or numbers. Upon
receipt of such notice, a terminating wireless provider must block all
texts from the number and respond to the Commission's Enforcement
Bureau indicating that the provider has received the notice and is
initiating blocking.
2. Under this rule, the Commission's Enforcement Bureau may notify
terminating providers of illegal texts from a number or numbers and
such Notification of Illegal Texts shall: (1) identify the number(s)
used to originate the illegal texts and the date(s) the texts were sent
or received; (2) provide the
[[Page 5099]]
basis for the Enforcement Bureau's determination that the identified
texts are unlawful; (3) cite the statutory or regulatory provisions the
illegal texts violate; (4) direct the provider receiving the notice
that it must comply with 47 CFR 64.1200(s) of the Commission's rules;
and (5) provide a point of contact to be used by a subscriber to a
listed number to dispute blocking. The Notification of Illegal Texts
shall specify a reasonable time frame for the notified provider to
respond to the Commission's Enforcement Bureau and initiate blocking.
The Enforcement Bureau shall publish the Notification of Illegal Texts
in EB Docket No. 23-418.
3. Upon receiving the Notification of Illegal Texts, the provider
must promptly begin blocking all texts from the identified number(s)
within the timeframe specified in the Notification of Illegal Texts.
The provider must respond to the Enforcement Bureau, including a
certification that it is blocking texts from the identified number(s).
If the provider learns that some or all of the numbers have been
reassigned, the provider shall promptly notify the Enforcement Bureau
of this fact and include any information it has obtained that
demonstrates the number has been reassigned. If the provider
subsequently determines that the number has been reassigned, it shall
notify the Enforcement Bureau and cease blocking. In such instances,
the Commission encourages providers to continue to use other available
methods to protect their customers. Providers are not required to
monitor whether any numbers subject to this blocking requirement have
been reassigned, but are required to notify the Commission and cease
blocking if the provider learns of a number reassignment.
4. The Commission does not adopt any additional protections in case
of erroneous blocking, but any individual or entity that believes its
texts are being blocked under this rule in error can make use of the
point of contact required under 47 CFR 64.1200(r) of the Commission's
rules. If the provider determines that blocking should cease, it should
notify the Enforcement Bureau of that finding, including any evidence
that supports that finding.
5. This rule shall be effective 180 days after publication of this
Second Report and Order in the Federal Register, to allow providers
additional time to ensure that they are prepared to comply. However,
the Commission states that this rule does not require Paperwork
Reduction Act (PRA) approval as it falls under the exception for
collections undertaken ``during the conduct of . . . an administrative
action or investigation involving an agency against specific
individuals or entities.''
6. National Do-Not-Call Registry. The Commission adopts the
proposal to codify the National DNC Registry's existing protections to
text messages. Texters must have the consumer's prior express
invitation or permission before sending a marketing text to a wireless
number in the DNC Registry. The Commission previously concluded that
the national database should allow for the registration of wireless
telephone numbers and that such action will further the objectives of
the TCPA and the Do-Not-Call Act. The Commission's action is consistent
with Federal court opinions and will both deter illegal texts and make
DNC enforcement easier.
7. Email-to-Text Messages. The Commission encourages providers to
make email-to-text an opt-in service as a way to reduce the number of
fraudulent text messages consumers receive. Texts originating from
email addresses, rather than telephone numbers, account for a
significant percentage of fraudulent text messages. For example, email-
to-text gateways enable anyone to send a text message to a mobile
subscriber in relative anonymity. The email-to-text messages process
allows the sender to be anonymous because the text is sent from an
email account on a computer, not a phone number.
8. Closing the Lead Generator Loophole. The Commission makes it
unequivocally clear that texters and callers must obtain a consumer's
prior express written consent to robocall or robotext the consumer
soliciting their business. This requirement applies to a single seller
at a time, on the comparison shopping websites that often are the
source of lead generation. Lead-generated communications are a large
percentage of unwanted calls and texts and often rely on flimsy claims
of consent to bombard consumers with unwanted robocalls and robotexts.
The Commission also requires that the consent must be in response to a
clear and conspicuous disclosure to the consumer and that the content
of the ensuing robotexts and robocalls must be logically and topically
associated with the website where the consumer gave consent.
9. The Commission adopts additional protections to further guard
against consent abuse and protect consumers from unwanted robocalls and
robotexts. First, the 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. ``Clear and conspicuous''
means notice that would be apparent to a reasonable consumer. In
addition, if compliance with the Federal Electronic Signatures in
Global and National Commerce Act (the E-Sign Act) is required for the
consumer's signature, then all the elements of E-Sign must be present.
10. Second, the Commission adopts the requirement that robotexts
and robocalls that result from consumer consent obtained on comparison
shopping websites must be logically and topically related to that
website. Thus, for example, a consumer giving consent on a car loan
comparison shopping website does not consent to get robotexts or
robocalls about loan consolidation. The Commission declines to adopt a
definition of ``logically and topically.'' This rule best balances the
desire of businesses to utilize lead generation services to call and
text potential customers with the need to protect consumers, including
small businesses, from a deluge of unwanted robocalls and robotexts.
11. The Small Business Administration's Office of Advocacy notes
that certain small businesses rely on purchasing sales leads from lead
generators; however, the rule adopted today only limits sellers, of any
size, from robocalling or robotexting consumers who did not explicitly
consent to receive such communications from a particular seller. Lead
generators can still conduct business and collect and share leads to
consumers interested in products and services, they just will not be
able to collect and share the consents for telemarketing calls that
included an artificial or prerecorded voice or are made with an
automatic dialer. Sellers that wish to use robocalls and robotexts for
such communications may still do so--provided they obtain consent
consistent with the reasonable limits codified in the rule.
12. This rule does not restrain comparison shopping, nor does it
unnecessarily constrain a businesses' ability to rely on leads
purchased from lead generators. For example, consumers may reach out to
multiple businesses themselves or ask to be contacted by businesses
only through means other than robocalling and robotexting. Further,
sellers may avail themselves of other options for providing comparison
shopping information to consumers, e.g., they may initiate calls or
texts to consumers without using an autodialer or prerecorded or
artificial voice messages or they may use email or postal mail, both to
provide information and to solicit further one-to-one consent to
robocall or robotext. Nothing in this rule restricts the ability of
businesses,
[[Page 5100]]
including small businesses, from relying on leads generated by third-
party lead generators.
13. Additionally, even under the Commission's new rule, comparison
shopping websites can obtain the requisite consent for sellers to
robocall and robotext consumers using easily implemented methods. For
instance, a website may offer a check box list that allows the consumer
to choose each seller that they wish to hear from. Alternatively, a
comparison shopping website may offer the consumer a clickthrough link
to a business so that it may obtain requisite consent from the consumer
directly. The rule does not prohibit websites from obtaining leads and
merely codifies reasonable limits on when those leads allow sellers to
use robocalls and robotexts to reach consumers.
14. Further, the rule protects callers who rely on leads generated
by third parties by ensuring that such callers operate pursuant to
legally sufficient consent from the consumers. A caller who is unable
to meet its burden of proof in demonstrating that it had valid consent
to initiate and robocall or robotext the individual consumer would be
liable under the TCPA for making such a call. The rule helps callers
and texters, including small businesses, by providing legal certainty
as to how to meet their burden of proof when they have obtained consent
via a third-party. Businesses relying on such leads will have an easier
and more certain way to demonstrate that they have obtained valid
consent to call.
15. In addition, the Commission finds that small businesses
themselves will benefit from the protections adopted. Small businesses
use comparison shopping services when comparison shopping for
businesses services. The prior express written consent requirements are
not limited to residential lines; these requirements extend to and
protect business phones from having their own phones inundated with
unwanted calls and texts. Such calls to these businesses may tie up
small business phones, annoy small business employees, and subject them
to the same type of fraud as consumers generally.
16. The Commission wants this important consumer protection rule to
be successfully implemented by comparison shopping websites and lead
generators. The Commission is adopting a 12 month implementation period
to make the necessary changes to ensure consent complies with the new
requirement. This implementation period will help mitigate some
challenges to implementation of the new rules and such period should
provide both lead generators and the callers that rely on the leads
they generate ample time to implement our new requirements.
17. The Commission will continue to monitor the impact that the
rule has on small businesses and delegates to the Consumer and
Governmental Affairs Bureau authority to conduct outreach and education
focusing on compliance with rules for small business lead generators as
well as for small business lead buyers. The Commission also reiterates
that the TCPA and existing rules already place the burden of proof on
the texter or caller to prove that they have obtained consent that
satisfies Federal laws and regulations. They may not, for example, rely
on comparison websites or other types of lead generators to retain
proof of consent for calls the seller makes. And, in all cases, the
consent must be from the consumer. ``Fake leads'' that fabricate
consumer consent do not satisfy the TCPA or the Commission's rules. In
addition, the consumer's consent is not transferrable or subject to
sale to another caller because it must be given by the consumer to the
seller.
18. The Commission also disagrees with the argument that making it
unequivocally clear that one-to-one consent is required for TCPA prior
express written consent, is arbitrary and capricious. The Commission
sought comment on this issue of consent in the FNPRM, published at 88
FR 21497 on April 11, 2023, specifically discussed the issue of
hyperlinks in a comparison shopping website, and illustrated the
problem by describing Assurance IQ, a website that purports to enable
consumers to comparison shop for insurance. As the Commission
explained, the Assurance IQ site sought consumer consent for calls and
texts from insurance companies and other various entities, including
Assurance IQ's ``partner companies,'' that were listed when accessing a
hyperlink on the page seeking consent (i.e., they were not displayed on
the website without clicking on the link) and included both insurance
companies and other entities that did not appear to be related to
insurance. The Commission also sought comment on amending the TCPA
consent requirements to require that such consent be considered granted
only to callers logically and topically associated with the website
that solicits consent and whose names are clearly disclosed on the same
web page. Numerous commenters supported the Commission's proposals.
Thus, the Commission's findings in the Second Report and Order are
reasonably and rationally based on the issues for which the Commission
sought comment and the comments filed.
19. Text Message Authentication and Spoofing. The Commission does
not adopt at this time caller ID authentication requirements for text
messaging.
20. Summary of Benefits and Costs. The Commission's conservative
estimate of the total loss from unwanted and illegal texts is $16.5
billion annually, which reflects both a substantial increase in the
number of spam texts in recent years (the nuisance cost), and an
increase in financial losses due to text scams. The Commission
estimates the nuisance cost of spam texts to be five cents per text.
This cost is multiplied by 225.7 billion spam texts sent annually and
the result is $11.3 billion in total nuisance cost. In addition, the
Commission estimates financial losses due to text scams to be $5.2
billion. Further, the total loss from unwanted and illegal calls is
relevant for the Commission's consideration of the benefit generated by
closing the lead generator loophole. The harm of unwanted and illegal
calls is at least $13.5 billion annually.
21. The Commission expects the actions in the Order will impose
minimal costs on mobile wireless providers and comparative shopping
websites. Nothing in the record demonstrates that requiring terminating
providers to block texts when notified by the Commission of illegal
texts would impose significant costs on mobile wireless providers. The
Commission expects that terminating providers aim to minimize texts
that subject their customers to nuisance and receiving notifications
from the Commission would assist in that effort and help providers
improve customer satisfaction. With respect to the action codifying
that text messages are covered by the National DNC Registry's
protections, the Commission sees no additional cost to providers.
22. The Commission notes that the new rules do not prohibit
comparison shopping websites, only the use of robocalls and robotexts
without one-to-one consent. The Small Business Administration's (SBA)
Office of Advocacy notes that small businesses have stated that the
proposal to require sellers to obtain consent to robocall or robotext
from one consumer at a time could increase costs significantly for
small businesses that both buy and sell sales leads, but the SBA did
not offer any evidence to support this contention and did not address
the benefit to both consumers and to small businesses in having a
reduction of unwanted calls
[[Page 5101]]
and texts. This new rule makes it unequivocally clear that prior
express written consent under the TCPA must be to one seller at a time,
but does not prevent small businesses from buying and selling leads nor
does it prevent small businesses from contacting consumers. The
Commission observes that the rule is especially helpful for small
business owners who are incentivized to answer all incoming calls
because each call may be from a potential customer and are unable to
ignore calls from unfamiliar numbers. In addition, this requirement
will help small businesses because it will provide legal certainty as
to how callers and texters can demonstrate valid consent when that
consent was obtained via a third party.
23. The Commission's decision to make unequivocally clear that
prior express written consent under the TCPA must be one-to-one consent
may raise costs for some businesses that use robocalling, including
those that fall under the definition of small businesses; however, no
party has presented any specific data to substantiate such possible
additional costs. Further, the benefits of making it unequivocally
clear that one-to-one consent is required for prior express written
consent under the TCPA, will accrue to millions of individuals and
businesses, including small businesses, and will outweigh any such
costs to those businesses currently using multi-party ``consent'' for
robocalls and robotexts. Any effort to create an exception for
particular businesses, including small businesses, has the potential to
undermine the effectiveness and intent of the policy, which is to
provide consumers (including small businesses) the ability to determine
when and how they are contacted in a transparent manner.
24. The Commission sees very little cost to providers as a result
of the encouragement to make email-to-text an opt-in service. Providers
who do not take up this option will incur no additional cost and, for
those providers who do so, the benefits of making email-to-text an opt-
in service, e.g., more satisfied customers, outweighs the costs of
setting up an opt-in program and marketing it to their subscribers.
Similarly, closing the lead generator loophole so that prior express
written consent can only be given directly from a consumer to a single
seller-caller at a time will result in only small additional costs for
comparative shopping websites and should lead to greater customer
satisfaction that may benefit such websites.
25. Based on the analysis of the anticipated benefits and costs
discussed above, the Commission believes the benefits of the rules
adopted in the Report and Order significantly outweigh their costs.
Even if these rules eliminate only a small share of unwanted and
illegal texts and calls, the benefits would be substantial, given the
magnitude of the likely losses from such texts and calls.
26. Legal Authority. The Commission relies on the TCPA to adopt
rules applicable to mobile wireless text messaging providers, including
the text blocking requirement. First, the TCPA gives the Commission
authority over the unsolicited text messages within the scope of the
Order. The TCPA, in relevant part, restricts certain autodialed calls
to wireless telephone numbers absent the prior express consent of the
called party. The Commission has found that, for the purposes of the
TCPA, texts are included in the term ``call.'' Because the Commission
has authority to regulate certain text messages under the TCPA,
particularly messages sent using an autodialer and without the consent
of the called party, the Commission has legal authority to require
providers to block text messages that violate the TCPA. The TCPA also
provides authority for the consent requirements and the codification
that text messages are covered by the National DNC Registry. The DNC
restrictions have long applied to wireless phones and the Commission
and courts have long held that text messages are calls under the TCPA.
Further, the Commission is codifying that text messages are included in
the National DNC Registry's protections--a position that the Commission
and several courts have previously taken--not expanding the National
DNC Registry's restrictions.
27. To the extent that the Commission may direct providers to block
texts where an autodialer has not been used, the Commission further
finds authority under section 251(e)(1) of the Communications Act.
Section 251(e)(1) provides the Commission with independent jurisdiction
to prevent the abuse of North American Numbering Plan (NANP) resources,
regardless of the classification of text messaging. Requiring blocking
of a particular number that has sent known illegal texts will help
ensure that entities sending illegal texts cannot continue to abuse
NANP resources to further their illegal schemes. Although NANP numbers
are used for routing calls on the public switched telephone network
(PSTN), the authority granted in section 251(e)(1) of the Act is not
restricted to voice calls routed via the PSTN. Rather, section
251(e)(1) is a clear grant of authority ``over those portions of the
North American Numbering Plan that pertain to the United States'' and
the underlying technology does not change the fact that the numbers in
question are portions of the NANP that pertain to the United States.
The Commission exercises its section 251(e)(1) authority to prevent the
abuse of NANP resources by sending illegal texts, regardless of whether
the number is spoofed. This is consistent with the Commission's
approach in calling, where the Commission has found that authority
under this section does not hinge on whether a call is spoofed. The
Commission also finds authority under Title III of the Act to adopt
these measures. Title III ``endow[s] the Commission with `expansive
powers' and a `comprehensive mandate to ``encourage the larger and more
effective use of radio in the public interest.'' ' '' Section 303 of
the Act grants the Commission authority to establish operational
obligations for licensees that further the goals and requirements of
the Act if such obligations are necessary for the ``public convenience,
interest, or necessity'' and are not inconsistent with other provisions
of law. In particular, section 303(b) authorizes the Commission to
``[p]rescribe the nature of the service to be rendered by each class of
licensed stations and each station within each class,'' and that is
what the notice requirement and blocking rule addresses here. In
addition, sections 307 and 316 of the Act allow the Commission to
authorize the issuance of licenses or adopt new conditions on existing
licenses if such actions will promote public interest, convenience, and
necessity. The Commission finds that the requirements adopted for
mobile wireless providers after they are on notice of illegal text
messages are necessary to protect the public from illegal text messages
and that such a requirement is in the public interest.
28. Waiver Order. The Commission adopts a waiver, sua sponte, for a
period of 12 months, to commence on the effective date of 47 CFR
64.1200(s) of the Commission's rules, specifically to allow mobile
wireless providers to access the Reassigned Numbers Database to
determine whether a number has been permanently disconnected since the
date of the illegal text described in the Notification of Illegal
Texts. The Commission delegates authority to the Consumer and
Governmental Affairs Bureau to extend the term of this waiver, if
needed. The Commission's rules require providers ensure the efficient
use of telephone numbers by reassigning a telephone
[[Page 5102]]
number to a new consumer after it is disconnected by the previous
subscriber; however, when a number is reassigned, callers may
inadvertently reach the new consumer who now has the reassigned number
(and may not have consented to calls from the calling party). To
mitigate these occurrences, the Commission established a single,
comprehensive database to contain reassigned number information from
each provider that obtains NANP U.S. geographic numbers, which enables
any caller to verify whether a telephone number has been reassigned
before calling that number. The use of the RND to determine if a number
has been disconnected following a Notification of Illegal Texts is
outside of the original scope of the RND which is available only to
callers who agree in writing that the caller (and any agent acting on
behalf of the caller) will use the database solely to determine whether
a number has been permanently disconnected since a date provided by the
caller for the purpose of making lawful calls or sending lawful texts.
The Commission may waive its rules for good cause shown. Good cause for
a waiver may be found if special circumstances warrant a deviation from
the general rule and such deviation will serve the public interest. The
Commission finds that permitting providers to access the RND for the
purpose of determining if a number has been permanently disconnected
after the date of an illegal text described in a Notification of
Illegal Texts would prevent erroneous blocking of text messages (if the
number had been reassigned) and is good cause to grant this waiver, sua
sponte. The Commission therefore adopts a waiver, sua sponte, for a
period of 12 months, to commence on the effective date of 47 CFR
64.1200(s) of the Commission's rules, specifically for accessing the
RND to determine whether a number has been permanently disconnected
since the date of the illegal text described in the Notification of
Illegal Texts. Providers may access the RND for this purpose in the
same manner as they would to determine whether a number has been
permanently disconnected since a date provided by the caller for the
purpose of making lawful calls or sending lawful texts.
Final Regulatory Flexibility Analysis
29. As required by the Regulatory Flexibility Act of 1980 (RFA), as
amended, an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the FNPRM, published at 88 FR 21497, on April 11, 2023.
The Federal Communications Commission (Commission) sought written
public comment on the proposals in the FNPRM, including comment on the
IRFA. The Commission received no comments in response to the IRFA. This
present Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.
30. Need for, and Objectives of, the Second Report and Order. The
Second Report and Order continues the Commission's efforts to stop the
growing tide of unwanted and illegal texts by building on the text
blocking requirements from the first Text Blocking Order, 88 FR 21497
(April 11, 2023). While mobile wireless providers voluntarily block a
significant number of unwanted and illegal texts, many of these harmful
texts still reach consumers. The Second Report and Order requires
terminating mobile wireless providers to block texts from a particular
source following notification from the Commission; codifies that the
National DNC Registry protections apply to text messages; encourages
mobile service providers to make email-to-text an opt-in service; and
revises the definition of prior express written consent making clear
that consent must be to one seller at a time, and the seller must be
logically and topically related to the content of the website on which
consent is obtained.
31. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. There were no comments filed that specifically
addressed the proposed rules and policies presented in the IRFA.
32. Response to Comments by the Chief Counsel for Advocacy of the
Small Business Administration. Pursuant to the Small Business Jobs Act
of 2010, which amended the RFA, the Commission is required to respond
to any comments filed by the Chief Counsel for Advocacy of the SBA, and
to provide a detailed statement of any change made to the proposed
rules as a result of those comments.
33. The Chief Counsel did not file comments in response to the
proposed rules in this proceeding; however, the Chief Counsel filed an
ex parte letter on December 1, 2023. The SBA contends that small
businesses have stated that the proposal to require sellers to obtain
consent to call or text from one consumer at a time could increase
costs significantly for small businesses that both buy and sell sales
leads. The SBA did not offer any evidence to support this contention
and did not address the benefit to consumers and to small businesses in
having a reduction of unwanted calls and texts.
34. This rule makes it unequivocally clear that prior express
written consent under the TCPA must be to one seller at a time, but
does not prevent small businesses from buying and selling leads or
prevent small businesses from contact with consumers. The requirements
for prior express written consent for the telemarketing calls covered
by the TCPA will also protect business phones from the floods of
unwanted prerecorded telemarketing calls. This is especially helpful
for small business owners who are incentivized to answer all incoming
calls because each call may be from a potential customer and they are
unable to ignore calls from unfamiliar numbers. In addition, this
requirement will help small businesses because it will provide legal
certainty as to how callers and texters can demonstrate valid consent
when that consent was obtained via a third party.
35. The Commission acknowledges that the decision to make
unequivocally clear that prior express written consent under the TCPA
must be one-to-one consent may raise costs for some businesses,
including those that fall under the definition of small businesses, in
that direct consent between a consumer and a seller requires more labor
and administration than a blanket authorization for affiliated
companies to contact an individual. However, the benefits of this
policy, which accrue to millions of individuals and businesses,
including small businesses, outweigh the costs to those businesses
currently benefiting from multi-party ``consent.'' Over time, it may be
possible for technological solutions to lower the costs to businesses
for seeking one-to-one prior express written consent and maintaining
consent records. Any effort to create an exception for particular
businesses, including small businesses, has the potential to undermine
the effectiveness and intent of the policy, which is to provide
consumers (including small businesses) the ability to determine when
and how they are contacted in a transparent manner.
36. Description and Estimate of the Number of Small Entities to
Which the Rules Will Apply. 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 and policies 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)
[[Page 5103]]
is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.
37. 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 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 33.2 million businesses. 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. 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.''
38. 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.
39. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g., dial-up ISPs) or Voice over internet Protocol
(VoIP) services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $35 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
40. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements for Small Entities. The Second Report and Order
includes new or modified reporting, recordkeeping, and compliance
requirements for small and other entities. This includes requiring
terminating mobile wireless providers to block texts from a particular
number or numbers following notification from the Commission. Providers
must promptly begin blocking the identified texts if illegal, and
respond to the notice. If the provider is unable to block further texts
from that number because it has learned that the number has been
reassigned the provider should promptly notify the Enforcement Bureau.
If the provider determines at a later date that the number has been
reassigned, it should notify the Enforcement Bureau, and cease
blocking. Providers that fail to comply may be subject to enforcement
penalties, including monetary forfeiture.
41. The Second Report and Order also codifies that the National DNC
Registry protections apply to text messages, and encourages mobile
service providers to make email-to-text an opt-in service.
Additionally, it revises our definition of prior express written
consent making clear that consent must be only to one single seller-
caller from one single consumer at a time, and the seller must be
logically and topically related to the content of the website on which
consent is obtained. Small entities may comply with the Telephone
Consumer Protection Act (TCPA) and contact consumers by obtaining
consent from the consumer to one seller at a time. The Commission
expects that small and other providers already taking significant
measures to block illegal texts and will not find it burdensome to
comply with these new obligations. Any such burdens would be far
outweighed by the benefits to consumers from blocking text messages
that are highly likely to be illegal.
42. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered. The RFA requires an
agency to provide, ``a description of the steps the agency has taken to
minimize the significant economic impact on small entities . . .
including a statement of the factual, policy, and legal reasons for
selecting the alternative adopted in the final rule and why each one of
the other significant alternatives to the rule considered by the agency
which affect the impact on small entities was rejected.''
43. In the Second Report and Order, the Commission adopted text
blocking rules modeled after the call blocking rules, but modified the
new rules to account for the differences in the technology and delivery
of text messages, and adopted requirements similar to those service
providers were already familiar with to reduce any additional burdens.
For example, a terminating provider will be required to block text
messages only after it has received notice from the Commission's
Enforcement Bureau. Second, text blockers are not required to block
traffic ``substantially similar'' to the traffic the Enforcement Bureau
identifies to avoid
[[Page 5104]]
blocking on content analysis, which could lead to over blocking. This
modification will reduce concerns about liability for blocking
incorrectly, as well as potential burdens if the Commission adopted a
more expansive rule. The Commission found that commenters made general
assertions, but offered no compelling evidence that they consistently
block all traffic the Enforcement Bureau might identify.
44. In the Second Report and Order, the Commission also modified
the prior express written consent requirement for TCPA consent to
protect consumers while preserving the ability of comparison shopping
websites to provide consumers with comparison shopping opportunities.
This rule revision does not change the longstanding requirement that
callers, including small businesses, must have consent from the called
party, to comply with the TCPA. This modification makes it unequivocal
that one-to-one consent is required under the Commission's TCPA consent
rules. Such a requirement should not burden small entities that use
lead generators to reach out to potential customers, because websites,
including comparison shopping websites, can use a variety of means for
collecting one-to-one consent for sellers to comply with the consent
rule. For example, a website may offer a consumer a check box list that
allows the consumer to specifically choose each individual seller that
they wish to hear from or may offer the consumer a clickthrough link to
a specific business so that the business itself may gather express
written consent from the consumer directly. A website publisher could
also reach out to a consumer for consent after the consumer has
provided certain requested information and the site has subsequently
selected a specific seller or sellers to contact the consumer.
45. The adopted modification does not prohibit comparison shopping
websites from obtaining leads through valid consent and provides
opportunities for such sites to obtain leads for potential callers
(including small businesses) and texters. Further, this rule
modification should help small businesses in reducing the number of
unwanted and illegal calls and texts they receive, particularly if they
cannot screen calls from unknown numbers. This rule modification best
balances the needs of businesses, including small businesses, to
utilize lead generation services to make calls to potential buyers with
protecting consumers from a deluge of unwanted robocalls and robotexts.
This will also help callers and texters, including small businesses, by
providing legal certainty as to how to meet their burden of proof when
they have obtained consent via a third party. Further, callers and
texters may avail themselves of other options for providing comparison
shopping information to consumers, e.g., manually dialed or non-
prerecorded or artificial voice calls or texts, email, or information
displayed directly on the third party website.
46. Report to Congress. The Commission will send a copy of the
Second Report and Order, including this FRFA, in a report to be sent to
Congress pursuant to the Congressional Review Act. In addition, the
Commission will send a copy of the Second Report and Order, including
this FRFA, to the Chief Counsel for Advocacy of the SBA.
List of Subjects
47 CFR Part 0
Communications common carriers, Telecommunications.
47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 0 and 64 as follows:
PART 0--COMMISSION ORGANIZATION
Subpart A--Organization
0
1. The authority citation for part 0 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409,
unless otherwise noted.
0
2. Effective March 26, 2024, amend Sec. 0.111 by revising paragraph
(a)(27) to read as follows:
Sec. 0.111 Functions of the Bureau.
(a) * * *
(27) Identify suspected illegal calls and illegal texts and provide
written notice to voice service or mobile wireless providers. The
Enforcement Bureau shall:
(i) Identify with as much particularity as possible the suspected
traffic or texts;
(ii) Cite the statutory or regulatory provisions the suspected
traffic appear to violate or illegal texts violate;
(iii) Provide the basis for the Enforcement Bureau's reasonable
belief that the identified traffic or the determination that the
illegal texts are unlawful, including any relevant nonconfidential
evidence from credible sources such as the industry traceback
consortium or law enforcement agencies; and
(iv) Direct the voice service provider receiving the notice that it
must comply with Sec. 64.1200(n)(2) of the Commission's rules or
direct the mobile wireless provider receiving the notice that it must
comply with 47 CFR 64.1200(s).
* * * * *
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
3. Effective March 26, 2024, the authority citation for part 64 is
revised 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, 620, 716, 1401-1473, unless otherwise
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.
Subpart L--Restrictions on Telemarketing, Telephone Solicitation,
and Facsimile Advertising
Sec. 64.1200 [Amended]
0
4. Effective March 26, 2024, amend Sec. 64.1200 in paragraph (e) by
adding ``or text messages'' after the word ``calls''.
0
5. Effective July 24, 2024, further amend Sec. 64.1200 by adding
paragraph (s) to read as follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(s) A terminating mobile wireless provider must, upon receipt of a
Notification of Illegal Texts from the Commission through its
Enforcement Bureau, take the actions described in this paragraph (s),
including, when required, blocking all texts from the identified number
or numbers. The Enforcement Bureau will issue a Notification of Illegal
Texts that identifies the number(s) used and the date(s) the texts were
sent or received; provides the basis for the Enforcement Bureau's
determination that the identified texts are unlawful; cites the
statutory or regulatory provisions the identified texts violate;
directs the provider receiving the notice that it must comply with this
section; and provide a point of contact to be used by a subscriber to a
listed number to dispute blocking. The Enforcement Bureau's
Notification of Illegal Texts shall give the identified provider a
reasonable amount of time to comply with the notice. The Enforcement
Bureau shall make the Notification of
[[Page 5105]]
Illegal Texts available in EB Docket No. 23-418 at <a href="https://www.fcc.gov/ecfs/search/search-filings">https://www.fcc.gov/ecfs/search/search-filings</a>. The provider must include a certification
that it is blocking all texts from the number or numbers and will
continue to do so unless the provider learns that the number has been
reassigned, in which case the provider shall promptly notify the
Enforcement Bureau of this fact and include any information it has
obtained that demonstrates that the number has been reassigned. If, at
any time in the future, the provider determines that the number has
been reassigned, it shall notify the Enforcement Bureau and cease
blocking. The provider is not required to monitor for number
reassignments.
0
6. Effective January 27, 2025, further amend Sec. 64.1200 by revising
paragraph (f)(9) to read as follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(f) * * *
(9) The term prior express written consent means an agreement, in
writing, that bears the signature of the person called or texted that
clearly and conspicuously authorizes no more than one identified seller
to deliver or cause to be delivered to the person called or texted
advertisements or telemarketing messages using an automatic telephone
dialing system or an artificial or prerecorded voice. Calls and texts
must be logically and topically associated with the interaction that
prompted the consent and the agreement must identify the telephone
number to which the signatory authorizes such advertisements or
telemarketing messages to be delivered.
(i) The written agreement shall include a clear and conspicuous
disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the seller
to deliver or cause to be delivered to the signatory telemarketing
calls or texts using an automatic telephone dialing system or an
artificial or prerecorded voice; and
(B) The person is not required to sign the agreement (directly or
indirectly) or agree to enter into such an agreement as a condition of
purchasing any property, goods, or services. The term ``signature''
shall include an electronic or digital form of signature, to the extent
that such form of signature is recognized as a valid signature under
applicable Federal law or State contract law.
* * * * *
[FR Doc. 2023-28832 Filed 1-25-24; 8:45 am]
BILLING CODE 6712-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on January 26, 2024.
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.