[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