[Federal Register Volume 88, Number 67 (Friday, April 7, 2023)]
[Proposed Rules]
[Pages 20800-20804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07069]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 64

[CG Docket Nos. 02-278, 21-402; FCC 23-21; FR ID 134449]


Targeting and Eliminating Unlawful Text Messages

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on whether to 
require terminating mobile wireless providers to block text messages 
when notified by the Commission that they are likely scams. The 
Commission also

[[Page 20801]]

seeks comment on text message authentication. In addition, the 
Commission seeks comment on extending Do-Not-Call protections to 
marketing text messages. Finally, the Commission seeks comment on 
banning the practice of obtaining a single consumer consent as 
justification for calls and texts from multiple sellers and potential 
fraudsters.

DATES: Comments are due on or before May 8, 2023 and reply comments are 
due on or before June 6, 2023.

ADDRESSES: You may submit comments, identified by CG Docket Nos. 02-278 
and 21-402, by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    Filings can be sent 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.
     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.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
     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, 35 FCC Rcd 2788 (OMD 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy. In the event that the Commission announces the 
lifting of COVID-19 restrictions, a filing window will be opened at the 
Commission's office located at 9050 Junction Drive, Annapolis, MD 
20701.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice).

FOR FURTHER INFORMATION CONTACT: Mika Savir of the Consumer Policy 
Division, Consumer and Governmental Affairs Bureau, at 
[email protected] or (202) 418-0384.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (FNPRM), in CG Docket Nos. 02-278 
and 21-402; FCC 23-21, adopted on March 16, 2023 and released on March 
17, 2023. The full text of this document is available online at https://docs.fcc.gov/public/attachments/FCC-23-21A1.pdf.
    This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. 47 CFR 
1.1200 et seq. Persons making oral ex parte presentations are reminded 
that memoranda summarizing the presentations must contain summaries of 
the substance of the presentations and not merely a listing of the 
subjects discussed. 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 Further Notice of Proposed Rulemaking (FNPRM) may contain 
proposed new or modified information collection requirements. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and OMB to comment on any 
information collection requirements contained in this document, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13. 
Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific 
comment on how to further reduce the information collection burden for 
small business concerns with fewer than 25 employees.

Synopsis

    1. In this FNPRM, the Commission seeks comment on additional 
protections for consumers against illegal robotexts. The Commission 
first seeks comment on whether to require terminating mobile wireless 
providers to block text messages when notified by the Commission that 
they are likely scams. The Commission also seeks comment on text 
message authentication. In addition, the Commission proposes to extend 
the National Do-Not-Call (DNC) Registry protections to marketing text 
messages. Finally, the Commission seeks to ban the practice of 
obtaining a single consumer consent as justification for calls and 
texts from multiple, sometimes hundreds, of sellers and potential 
fraudsters.
    2. First, the Commission proposes to require terminating mobile 
wireless providers to investigate and potentially block texts from a 
sender after they are on notice from the Commission that the sender is 
transmitting suspected illegal texts, similar to our requirement for 
gateway providers with respect to voice calls. Where texts are clearly 
illegal, and the Commission has put providers on notice of the illegal 
texts, mobile wireless providers should have no legitimate reason to 
transmit the texts. The Commission therefore seeks comment on extending 
this approach, which is in place for call blocking, to text blocking.
    3. Specifically, the Commission's rules (in 47 CFR 64.1200(n)(5)) 
require the Commission's Enforcement Bureau to issue a Notification of 
Suspected Illegal Traffic that: (1) identifies with as much 
particularity as possible the suspected illegal traffic; (2) provides 
the basis for the Enforcement Bureau's reasonable belief that the 
identified traffic is unlawful; (3) cites the statutory or regulatory 
provisions the suspected illegal traffic appears to violate; and (4) 
directs the provider receiving the notice that it must comply with the 
requirements in section 64.1200(n)(5) of the Commission's rules by a 
specified date that gives the provider a minimum of 14 days to comply. 
Notified gateway voice providers must then promptly investigate the 
identified traffic and either block the identified traffic and 
substantially similar traffic on an ongoing basis or respond to the 
Commission that the provider has a reasonable basis for concluding that 
the identified calls are not illegal. If a provider fails to comply, 
the Commission established a process through which the Enforcement 
Bureau can require all providers immediately downstream from that 
gateway provider to block all traffic from that provider.
    4. The Commission seeks comment on whether there are any 
differences between calling and texting that would suggest that this 
model would not work well for texting. The Commission seeks comment on 
the cost to providers of implementing such a requirement. The 
Commission also seeks comment on whether providers and the Commission's 
Enforcement Bureau can properly trace text messages to their 
originating provider to effectuate these rules. Are there additional 
requirements the Commission should adopt to ease any traceback efforts 
for text messaging? Because providers state that they

[[Page 20802]]

already do a considerable amount of text blocking, the Commission does 
not expect the proposal to impose material additional costs. The 
Commission seeks comment on these questions specifically and this 
recommendation generally.
    5. Second, the Commission seeks comment on the extent of number 
spoofing and if there are other solutions that are better targeted to 
address the problem of spoofed text messages. In the robocalling 
context, the Commission has found that a subset of small voice service 
providers are responsible for a large number of illegal robocalls. The 
Commission seeks comment on whether a similar dynamic at issue with 
robotexts. If so, how might the Commission target these specific 
providers? How might the Commission encourage industry members to 
collaborate and finalize technical solutions for authenticating text 
messages and mitigating illegal text messages? For example, should the 
Commission adopt a deadline for providers to develop a text message 
authentication solution or an alternative technical solution for 
addressing the problem of spoofed text messages? Commenters should 
address how the Commission can ensure non-discriminatory policies in 
adopting text authentication measures.
    6. Third, the Commission proposes to clarify that the National Do-
Not-Call Registry protections apply to text messages as well as voice 
calls and to codify this clarification in the Commission's rules. The 
National DNC Registry has been operational for almost two decades and 
currently protects over 246 million telephone numbers from 
telemarketing sales calls, or telephone solicitations. As such, it 
represents a critical component of the policy strategy against unwanted 
calls. Although the Commission has stated that text messages are calls 
for Telephone Consumer Protection Act (TCPA) purposes, it has not 
explicitly included text messages in the codified DNC rules that 
protect wireless phone subscribers by requiring prior express 
invitation or permission in writing for calls to wireless numbers on 
the National DNC Registry. The Commission's rules require that, before 
sending a marketing text to consumers, the texter must have the 
consumer's prior express invitation or permission, which must be 
evidenced by a signed, written agreement between the consumer and 
seller, which states that the consumer agrees to be contacted by this 
seller and includes the telephone number to which the calls may be 
placed.
    7. The Commission seeks comment on whether codifying the DNC 
protections to marketing texts further protect consumers from unwanted 
marketing text messages. We note that the DNC protections do not depend 
on whether the caller uses an autodialer, unlike some provisions of the 
TCPA. The Commission seeks comment on whether the proposal would also 
represent an important codification of consumer protections. Are there 
downsides to the proposal?
    8. Finally, the Commission proposes to ban the practice of 
obtaining a single consumer consent as grounds for delivering calls and 
text messages from multiple marketers on subjects beyond the scope of 
the original consent. In an illustration of the issue, Assurance IQ 
describes a website that purports to enable consumers to comparison 
shop for insurance. The website sought consumer consent for calls and 
texts from insurance companies and other various entities, including 
Assurance IQ's partner companies that were listed in a hyperlink on the 
web page (i.e., they were not displayed on the website without clicking 
on the link) and the list of partner companies included both insurance 
companies and other entities that did not appear to be related to 
insurance. The telemarketer that obtains the consumer's contact 
information from the lead generator may believe that it has the 
consumer's prior express consent, but, commenters argue, the consumer 
has not consented to the particular caller or callers, which may be 
listed as partner companies in these arrangements.
    9. The Commission seeks 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. The Commission has not addressed this aspect of consent in the 
past. Would this proposal better protect consumers from receiving large 
numbers of calls and texts they do not wish to receive when they visit 
websites such as comparison shopping websites? Consumers may find 
comparison shopping websites helpful; how can we ensure that they can 
consent to obtain further information from the site without receiving 
numerous calls and texts from unrelated companies? Commenters should 
discuss whether the proposal would limit the value of comparison-
shopping sites to consumers. Are there alternatives that would better 
protect consumers from the harms identified? The Commission also seeks 
comment on whether prior express consent to receive calls or texts must 
be made directly to one entity at a time. More broadly, the Commission 
seeks comment on the extent of the problem, the proposed rule, and 
whether the proposed rule will clarify consent and help to eliminate 
illegal text messages and calls. Are there different or additional 
limitations on multi-party consent the Commission should consider?

Initial Regulatory Flexibility Analysis

    10. 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 proposed in 
this FNPRM. 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 FNPRM, provided on the first page 
of the FNPRM. The Commission will send a copy of the entire FNPRM, 
including the IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA).
    11. Need for, and Objectives of, the Proposed Rules. The FNPRM 
seeks comment on several issues, specifically, (i) whether to require 
terminating mobile wireless providers to block text messages when 
notified by the Commission that they are likely scams; (ii) text 
message authentication; (iii) extending Do-Not-Call protections to 
marketing text messages; and (iv) banning the practice of obtaining a 
single consumer consent as justification for calls and texts from 
multiple sellers and potential fraudsters.
    12. Legal Basis. This action, including publication of proposed 
rules, is authorized under sections 4(i), 4(j), 201(b), 227(e), 254, 
257, 301, and 303 of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 154(j), 201(b), 227(e), 254, 257, 301, and 303.
    13. Description and Estimate of the Number of Small Entities to 
Which the Proposed 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 proposed rules and 
policies, if adopted. 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;

[[Page 20803]]

and (3) satisfies any additional criteria established by the SBA.
    14. 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 SBA's 
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.
    15. 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.
    16. 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, we estimate that at least 
48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    17. 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 2021 Universal 
Service Monitoring Report, as of December 31, 2020, there were 797 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 715 
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.
    18. 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.
    19. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities. This FNPRM may include a 
change to the Commission's current information collection, reporting, 
recordkeeping, or compliance requirements.
    20. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its 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) and 
exemption from coverage of the rule, or any part thereof, for such 
small entities.
    21. The FNPRM seeks comment on (i) whether to require terminating 
mobile wireless providers to block text messages when notified by the 
Commission that they are likely scams; (ii) text message 
authentication; (iii) extending Do-Not-Call protections to marketing 
text messages; and (iv) banning the practice of obtaining a single 
consumer consent as justification for calls and texts from multiple 
sellers and potential fraudsters.
    22. These proposals would probably not be burdensome for small 
entities. The proposal to require those seeking consent from consumers 
to a list of entities, to clearly and conspicuously display the list 
where consent is requested would, if adopted, prevent those lead 
generators or telemarketers from failing to advise the consumer of the 
list of entities; instead the list would be displayed where the consent 
is requested. This should not be burdensome to small entities, as it 
merely requires disclosing the list where consent is requested, instead 
of in a hyperlink, and should reduce unwanted text messages and calls 
to consumers. The proposal to include texts in the DNC rules should not 
have an impact on small entities. Wireline and wireless phones are 
already included and this would just clarify that not only calls to 
wireless phones on the DNC list are covered, but text messages, too. 
The Commission anticipates that these rules, if adopted, would also 
reduce unwanted calls and texts to small entities. The proposal to 
require service providers to block texts after notice from the 
Commission of suspected illegality, including fraud should not be 
burdensome for small entities. Mobile wireless providers are already 
diligent in blocking fraudulent calls and texts to their customers and 
this would assist them in those efforts.
    23. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules. None.

List of Subjects in 47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping

[[Page 20804]]

requirements, Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposed to amend 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation to 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.

0
2. Amend Sec.  64.1200 by revising paragraphs (e) and (f)(9) to read as 
follows:


Sec.  64.1200  Delivery Restrictions.

* * * * *
    (e) The rules set forth in paragraph (c) and (d) of this section 
are applicable to any person or entity making telephone solicitations 
or telemarketing calls or texts to wireless telephone numbers to the 
extent described in the Commission's Report and Order, CG Docket No. 
02-278, FCC 03-153, ``Rules and Regulations Implementing the Telephone 
Consumer Protection Act of 1991.''
    (f) * * *
    (9) The term prior express written consent means an agreement, in 
writing, bearing the signature of the person called that clearly 
authorizes the seller to deliver or cause to be delivered to the person 
called advertisements or telemarketing messages using an automatic 
telephone dialing system or an artificial or prerecorded voice, and the 
telephone number to which the signatory authorizes such advertisements 
or telemarketing messages to be delivered. Prior express written 
consent for a call or text may be to a single entity, or to multiple 
entities logically and topically associated. If the prior express 
written consent is to multiple entities, the entire list of entities to 
which the consumer is giving consent must be clearly and conspicuously 
displayed to the consumer at the time consent is requested. To be 
clearly and conspicuously displayed, the list must, at a minimum, be 
displayed on the same web page where the consumer gives consent.
* * * * *
[FR Doc. 2023-07069 Filed 4-6-23; 8:45 am]
BILLING CODE 6712-01-P