[Federal Register Volume 88, Number 124 (Thursday, June 29, 2023)]
[Proposed Rules]
[Pages 42034-42040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13821]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 124 / Thursday, June 29, 2023 / 
Proposed Rules  

[[Page 42034]]



FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 23-49; FR ID 149026]


Prior Express Consent Under the Telephone Consumer Protection Act 
of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission 
(Commission) proposes measures to clarify and strengthen consumers' 
ability to revoke consent to receive both robocalls and robotexts. The 
Commission proposes to codify past guidance on prior express consent to 
make these requirements more apparent to callers and consumers. In 
addition, the Commission proposes to amend its rules to strengthen the 
ability of consumers to decide which robocalls and robotexts they wish 
to receive by exercising their right to grant and revoke consent to 
individual callers. Specifically, the Commission proposes to: ensure 
that revocation of consent does not require the use of specific words 
or burdensome methods; require that callers honor do-not-call and 
consent revocation requests within a reasonable time, not to exceed 24 
hours of receipt; codify the ruling that consumers only need to revoke 
consent once to stop getting all robocalls and robotexts from a 
specific entity; and allow wireless consumers the option to stop 
robocalls and robotexts from their own wireless service provider.

DATES: Comments are due on or before July 31, 2023, and reply comments 
are due on or before August 14, 2023.

ADDRESSES: You may submit comments, identified by CG Docket No. 02-278, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     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, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

FOR FURTHER INFORMATION CONTACT: Richard D. Smith of the Consumer and 
Governmental Affairs Bureau at (717) 338-2797 or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), in CG Docket No. 02-278, FCC 23-49, 
adopted on June 8, 2023 and released on June 9, 2023. The full text of 
the document is available for public inspection and copying via the 
Commission's Electronic Comment Filing System (ECFS). To request 
materials in accessible formats for people with disabilities (Braille, 
large print, electronic files, audio format), send an email to 
[email protected] or call the Consumer and Governmental Affairs Bureau at 
202-418-0530 (voice).
    This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. 47 CFR 
1.1200 through 1.1216. Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentations must contain 
summaries of the substances of the presentations and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented is generally required. 
See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex 
parte presentations in permit-but-disclose proceedings are set forth in 
Sec.  1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

Initial Paperwork Reduction Act of 1995 Analysis

    The NPRM seeks comment on proposed rule amendments that may result 
in modified information collection requirements. If the Commission 
adopts any modified information collection requirements, the Commission 
will publish a notice in the Federal Register inviting the public to 
comment on the requirements, as required by the Paperwork Reduction 
Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to 
the Small Business Paperwork Relief Act of 2002, the Commission seeks 
comment on how it might further reduce the information collection 
burden for small business concerns with fewer than 25 employees. Public 
Law 107-198; 44 U.S.C. 3506(c)(4).

Synopsis

    1. The Commission initiates this proceeding to clarify and 
strengthen consumers' rights under the TCPA to grant and revoke consent 
to receive robocalls and robotexts. Specifically, the Commission 
proposes to: (1) ensure that revocation of consent does not require the 
use of specific words or burdensome methods; (2) require that callers 
honor do-not-call and consent revocation requests within a reasonable 
time, not to exceed 24 hours of receipt; (3) codify the ruling that 
consumers only need to revoke consent once to stop getting all 
robocalls and robotexts from a specific entity; and (4) allow wireless 
consumers the option to stop robocalls and robotexts from their own 
wireless service provider. As discussed below,

[[Page 42035]]

the Commission seeks comment on these proposals and on the costs and 
benefits of the proposals, including for smaller businesses and 
consumers.

A. Revoking Consent in Any Reasonable Way

    2. The Commission proposes to codify its 2015 ruling confirming 
that consumers who have provided prior express consent to receive 
autodialed or prerecorded voice calls may revoke such consent through 
any reasonable means. See Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC 
Docket No. 07-135, Declaratory Ruling and Order, published at 80 FR 
61129, October 9, 2015. The Commission believes this will make clearer 
to callers and consumers that a consumer has a right to revoke consent 
under the TCPA. Specifically, the Commission proposes codifying a rule 
that would make clear that consumers may revoke prior express consent 
in any reasonable manner that clearly expresses a desire not to receive 
further calls or text messages, including using words such as ``stop,'' 
``revoke,'' ``end,'' or ``opt out,'' and that callers may not infringe 
on that right by designating an exclusive means to revoke consent that 
precludes the use of any other reasonable method. The Commission seeks 
comment on this proposal.
    3. Additionally, the Commission proposes to codify that reasonable 
methods to revoke consent typically include revocation requests made by 
text message, voicemail, or email to any telephone number or email 
address at which the consumer can reasonably expect to reach the 
caller. The Commission proposes to codify that, when a consumer uses 
any such method to revoke consent, doing so creates a presumption that 
the consumer has revoked consent, absent evidence to the contrary. For 
example, the use of reply text messages is a reasonable and widely 
recognized means for text recipients to revoke prior consent to text 
messages. The sending of a ``STOP'' message in reply to an incoming 
text message is the standard recommended by industry groups such as the 
Mobile Marketing Association. In addition, text messages may, on 
occasion, inadvertently be directed to reassigned or wrong numbers. In 
these instances, the text recipient may have no contact information 
other than the text itself, since the recipient is not the party that 
provided prior consent to the sender, and the only method they may have 
to contact the sender is with a reply text message. Thus, the 
Commission proposes to codify that the sending of ``STOP'' or a similar 
message that reasonably conveys a desire to not receive further 
messages in reply to an incoming text message creates a presumption 
that the consumer has revoked consent in a reasonable way. Should the 
text initiator choose to use a texting protocol that does not allow 
reply texts, we propose that it would bear the risk of potential 
liability under the TCPA unless it both provides a clear and 
conspicuous disclosure on each text to the consumer that two-way 
texting is not available due to technical limitations of the texting 
protocol and clearly and conspicuously provides alternative ways for a 
consumer to revoke consent, such as a link or instructions to text a 
different number. The Commission seeks comment on these proposed rules.
    4. The Commission believes that these proposed rules are consistent 
with the Commission's prior finding that placing significant burdens on 
the called party who no longer wishes to receive such calls or texts is 
inconsistent with the TCPA and with our finding that the TCPA requires 
``only that the called party clearly express his or her desire not to 
receive further calls'' to invoke this right to revoke consent. The 
Commission seeks comment on whether callers have encountered any 
difficulties in complying with this longstanding precedent that 
consumers can revoke consent via any reasonable method. Based on this 
experience, are there specific issues or circumstances that have arisen 
that the Commission should address in the context of this proceeding to 
provide clarity as to the factors that make the means of revocation 
``reasonable'' both from a consumer's perspective and that of a caller? 
Has the Commission struck an appropriate balance here between 
protecting the consumer's privacy interests and facilitating the 
caller's ability to process opt-out requests?
    5. The Commission also recognizes that the scope of a 
``reasonable'' means to revoke consent is not unlimited. The Commission 
seeks comment on any such limitations it should codify. What are the 
most common situations in which callers are unable to process opt-out 
requests from consumers? Are there ways that the Commission could 
address these situations in this proceeding consistent with its goal 
not to place an unreasonable burden on consumers to opt out of 
robocalls? The Commission proposes to codify that callers that do not 
believe that consumers have used a reasonable method to convey a 
request to revoke consent will be afforded an opportunity to rebut the 
presumption on a case-by-case basis, should a complaint be filed with 
the Commission or finder of fact. The Commission seeks comment on the 
types of evidence that would suffice to rebut the presumption. For 
example, if the consumer directs the request to a telephone number or 
email address, and the caller presents evidence that the consumer lacks 
a reasonable basis to expect that the request will be received by it, 
should the Commission hold that such a method to revoke consent is not 
in fact reasonable? The Commission believes such a rule would balance 
the consumer's right to revoke consent in an easy and reasonable manner 
with the caller's ability to process such revocation requests. The 
Commission seeks comment on this proposal, including any impact on 
small entities.

B. Timeframe for Honoring a Do-Not-Call or Revocation Request

    6. The Commission proposes to require that, within 24 hours of 
receipt, callers must honor company-specific do-not-call and 
revocation-of-consent requests for robocalls and robotexts that are 
subject to the TCPA. The Commission's rules currently provide no 
specific timeframes for honoring revocation-of-consent requests for 
robocalls and robotexts made to residential or wireless telephone 
numbers. The Commission's rules currently require callers making 
telemarketing calls or exempted artificial and prerecorded voice calls 
to residential telephone numbers and exempted package delivery calls 
and texts to wireless consumers to honor do-not-call requests within a 
reasonable time not to exceed 30 days from the date of any such 
request. This proposal will require amending those existing rules and 
establishing new rules where no specific timeframe for honoring such 
requests currently exists. The Commission seeks comment on this 
proposal, including on the 24-hour period. Is this period reasonable? 
Should the Commission, rather, require that revocations be honored 
immediately upon receipt or consider some other timeframe?
    7. Consumers are understandably frustrated when they receive 
robocalls and robotext messages days or even weeks following a request 
to stop such communications. Such delays also undermine a consumer's 
right to determine which robocalls and robotexts they wish to receive 
under the privacy protections afforded by the TCPA. In addition, the 
Commission believes that advances in technology over the years, 
including automated and interactive technologies, have made the

[[Page 42036]]

processing of do-not-call and consent revocation requests more 
efficient and timely than in the past. The Commission believes that 
such technological advances provide callers and senders of text 
messages with the tools they need to process all do-not-call and 
consent revocation requests in near real time. The Commission seeks 
comment on these beliefs.
    8. Consistent with the conditions imposed on other calls to 
wireless telephone numbers that are exempt from the prior-express-
consent requirement, the Commission also proposes to amend its rules 
for exempted package delivery calls to require that such callers honor 
an opt-out request immediately. This proposal will place such callers 
on an equal footing with other categories of callers that have been 
granted an exemption to call wireless telephone numbers without prior 
express consent. Alternatively, is there any reason that package 
delivery calls should continue to be treated differently from other 
exempted callers to allow for up to 30 days to honor an opt-out 
request? The Commission believes these proposals will provide consumers 
with certainty that their do-not-call and consent revocation requests 
are honored in a timely manner, enhancing the ability of consumers to 
stop unwanted robocalls and robotexts. The Commission seeks comment on 
these proposals, including any burdens this may impose on callers, 
including small entities.

C. Revocation Confirmation Text Message

    9. The Commission proposes to codify the Soundbite Declaratory 
Ruling clarifying that a one-time text message confirming a consumer's 
request that no further text messages be sent does not violate the TCPA 
or the Commission's rules as long as the confirmation text merely 
confirms the called party's opt-out request and does not include any 
marketing or promotional information, and the text is the only 
additional message sent to the called party after receipt of the opt-
out request. In the Soundbite Declaratory Ruling, the Commission noted 
that ``confirmation messages ultimately benefit and protect consumers 
by helping to ensure, via such confirmation, that the consumer who 
ostensibly opted out in fact no longer wishes to receive text messages 
from entities from whom the consumer previously expressed an 
affirmative desire to receive such messages.'' The Commission believes 
that codifying this ruling will better ensure that both text senders 
and recipients are aware of it, including the limitations imposed on 
such one-time confirmation text messages. The Commission seeks comment 
on this proposal. In the time since it went into effect, have callers 
or consumers encountered any issues not addressed in the Soundbite 
Declaratory Ruling?
    10. The Commission also proposes to codify that senders can include 
a request for clarification in the one-time confirmation text, provided 
the sender ceases all further robocalls and robotexts absent an 
affirmative response from the consumer that they wish to receive 
further communications from the sender. The Commission further propose 
that a lack of any response to the confirmation call or text must be 
treated by the sender as a revocation of consent for all robocalls and 
robotexts from the sender. It does so in response to Capital One's 
petition seeking confirmation that the text sender may request 
clarification in its one-time confirmation message of the scope of the 
recipient's revocation request when that recipient has consented to 
receiving multiple categories of informational messages from the 
sender. The Commission notes that banks and financial institutions 
support Capital One's request, indicating that consumers often consent 
to receive multiple categories of informational messages and that opt-
out requests in these situations can be ambiguous as to whether the 
request applies to all or just certain types of those messages. 
Consumer groups have also expressed support for Capital One's request, 
provided that a lack of any response to the confirmation text message 
must be interpreted by the sender to mean that the consumer's 
revocation request was intended to encompass all robocalls and 
robotexts and the sender must therefore cease all further robocalls and 
robotexts to that consumer absent further clarification from the 
consumer. The Commission seeks further comment on any additional issues 
not fully addressed in the record.
    11. Consistent with the Soundbite Declaratory Ruling and Capital 
One's request, the Commission proposes to codify that any such 
clarification message must not contain any marketing or advertising 
content or seek to persuade the recipient to reconsider their opt-out 
decision. Rather, this proposed clarification is strictly limited to 
informing the recipient of the scope of the opt-out request absent some 
further confirmation from the consumer that they wish to continue 
receiving certain categories of text messages from the sender. The 
Commission seeks comment on this limitation.
    12. The Commission proposes to emphasize that this confirmation 
text message is limited to a final one-time text message absent an 
affirmative response from the consumer that they wish to continue to 
receive certain categories of informational calls or text messages from 
the sender. The Commission proposes that, in the absence of any such 
affirmative response, no further robocalls or robotexts can be made to 
this consumer. In addition, the Commission proposes that a ``STOP'' 
text sent in response to the one-time request for confirmation does not 
then allow the text sender to send another request for further 
clarification. As noted above, both industry and consumer groups 
support this proposal. Does the record fully address the views of all 
parties?
    13. The Commission seeks comment on these proposals and any other 
related issues, such as any impact on smaller entities. Is this the 
appropriate limit to put on the clarification from the Soundbite 
Declaratory Ruling? Are there other limitations the Commission should 
impose to protect consumers' rights to opt out of text messages yet 
ensure callers' ability to correctly interpret consumers' intent in 
revoking consent? Should the Commission instead decline to offer the 
clarification Capital One seeks?

D. Wireless Carrier Calls to Subscribers

    14. The Commission proposes to require wireless providers to honor 
their customers' requests to cease autodialed, prerecorded voice, and 
artificial voice calls, and autodialed texts. To effectuate this 
change, the Commission proposes to alter our prior ruling to require 
wireless providers to subject such calls to certain conditions that 
protect the privacy interests of subscribers.
    15. In 1992, the Commission concluded that wireless carriers need 
not obtain consent prior to initiating autodialed, artificial voice, or 
prerecorded voice calls to their own subscribers because such 
communications were not charged to the called party. See Rules and 
Regulations Implementing the Telephone Consumer Protection Act of 1991, 
CC Docket No. 92-90, Report and Order, published at 57 FR 48333, 
October 23, 1992. Following this ruling, Congress amended the TCPA to 
grant the Commission express statutory authority to exempt from the 
prior-express-consent requirement calls to wireless numbers that are 
not charged to the called party subject to such conditions as the 
Commission deems necessary to protect the privacy rights afforded under 
the TCPA. As a result, the ability of wireless carriers to call their 
own subscribers without prior

[[Page 42037]]

express consent, where the consumer is not charged for the call, was 
based on the language of Sec.  227(b)(1)(A)(iii) and was not a creation 
of a Sec.  227(b)(2)(C) exemption; therefore, the Commission has not 
subjected this ability to conditions to protect the privacy rights of 
wireless subscribers that the Commission has imposed in other analogous 
situations where callers have been granted an exemption to make 
robocalls or send robotexts to wireless numbers without prior express 
consent.
    16. This situation has created disagreements as to whether the 
Commission has authority to impose an opt-out requirement on 
communications from wireless service providers to their customers. Two 
wireless subscribers filed petitions seeking clarification that they 
can revoke consent to receive calls and messages from their wireless 
provider after such a request to stop such communications was denied by 
their wireless providers. In response to requests for comments on these 
petitions, wireless providers and organizations opposed the relief 
sought, arguing that the TCPA's prohibitions do not apply to 
communications from wireless providers to their customers because there 
is no charge to the subscribers for calls and messages to them. As a 
result, these commenters contend, there is no prior consent to be 
revoked because prior express consent is not required to make such 
calls under the TCPA. The Commission seeks comment on these 
considerations in the context of its proposed exemption.
    17. The Commission proposes to revisit the 1992 ruling that 
``cellular carriers need not obtain additional consent from their 
cellular subscribers prior to initiating autodialer and artificial and 
prerecorded message calls for which the cellular subscriber is not 
charged.'' Instead of that blanket exemption for all wireless calls for 
which the subscriber is not charged, the Commission proposes to create 
and codify a qualified exemption--based on its authority under Sec.  
227(b)(2)(C)--for informational robocalls and robotexts from wireless 
providers to their subscribers. More specifically, those calls would be 
exempt from the prior-express-consent requirement if, and only if, 
certain conditions are satisfied. As noted, the Commission has 
exercised this statutory authority to recognize certain limited 
exemptions in other analogous situations where such calls also are made 
without a charge to the called party. The Commission notes that Sec.  
227(b)(2)(C)'s authority to grant exemptions from the prior-express-
consent requirement is predicated on the ability of callers to make 
such calls with no charge to the consumer. The Commission believes that 
requirement would be meaningless if all such calls or texts were deemed 
to be wholly outside the prior express consent requirement merely 
because they were free to the end user, as some wireless providers have 
argued. Consistent with Sec.  227(b)(2)(C), which permits the 
Commission to impose such conditions it deems necessary in the interest 
of privacy, the Commission proposes conditions that are similar to 
those it imposed to protect the privacy interests of consumers in other 
situations where it has recognized an exemption from the prior-express-
consent requirement for robocalls to wireless telephone numbers. The 
proposed conditions are as follows:
    (A) voice calls and text messages are initiated by a wireless 
service provider only to an existing subscriber of that wireless 
service provider at a number maintained by the wireless service 
provider;
    (B) voice calls and text messages must state the name and contact 
information of the wireless provider (for voice calls, these 
disclosures must be made at the beginning of the call);
    (C) voice calls and text messages must not include any 
telemarketing, solicitation, or advertising;
    (D) voice calls and text messages must be concise, generally one 
minute or less in length for voice calls or 160 characters or less in 
length for text messages;
    (E) a wireless service provider may initiate a maximum of three 
voice calls or text messages during any 30-day period;
    (F) a wireless service provider must offer recipients within each 
message an easy means to opt out of future such messages; voice calls 
that could be answered by a live person must include an automated, 
interactive voice- and/or key press-activated opt-out mechanism that 
enables the call recipient to make an opt-out request prior to 
terminating the call; voice calls that could be answered by an 
answering machine or voice mail service must include a toll-free number 
that the consumer can call to opt out of future calls; text messages 
must inform recipients of the ability to opt out by replying ``STOP''; 
and,
    (G) a wireless service provider must honor opt-out requests 
immediately.
    18. The Commission believes such an exemption, subject to the 
conditions imposed above, balances the privacy interests of the TCPA 
with the legitimate interests of wireless providers in communicating 
with their own subscribers. And because the TCPA only restricts calls 
initiated with an autodialer or using an artificial or prerecorded 
voice to a wireless telephone number, wireless providers can use a live 
agent or equipment that does not constitute an autodialer to make such 
calls or send texts without running afoul of the TCPA. In addition, the 
Commission proposes that wireless providers have the option to obtain 
the prior express consent of their subscribers to avoid the need to 
rely on this exemption and its accompanying conditions, including the 
numerical limits imposed on such exempted calls. The Commission seeks 
comment on these conditions. Are further conditions needed for calls 
from a wireless service provider to its subscribers? Alternatively, the 
Commission seeks comment on any benefits consumers receive from calls 
or messages that may be lost as a consequence of an opt-out or limit on 
the number of calls or messages sent. Are there any potential drawbacks 
for consumers to the conditions proposed? If so, should the Commission 
modify its proposed conditions to account for any such drawbacks?
    19. Lastly, the Commission believes such an exemption satisfies the 
obligations of Sec.  8 of the TRACED Act. Specifically, the class of 
parties that may make such exempted calls in these situations is 
strictly limited to the wireless service provider. The class of parties 
that may be called is limited to an existing subscriber of a wireless 
service provider, and the number of such calls and messages is limited 
to three calls within any 30-day period. To the extent that there are 
any calls or texts that wireless service providers are mandated to make 
to their subscribers pursuant to any federal or state law, the 
Commission seeks comment on whether such calls or texts should not be 
counted toward the numerical limit of such communications that are 
imposed in the 30-day timeframe. The Commission seeks comment on this 
proposal, including any burdens this proposal may impose on wireless 
providers, including small entities.

E. Legal Authority

    20. The Commission tentatively concludes that its legal authority 
for the proposed rules contained herein derives from Sec. Sec.  154 and 
227 of the Communications Act of 1934, as amended (the Act). The 
Commission further proposes to rely on its authority under Sec.  8 of 
the TRACED Act to establish limitations on the proposed exemption for 
wireless providers from the TCPA's prior-express-consent requirement. 
As discussed above, the Commission as the expert agency on the

[[Page 42038]]

TCPA has addressed issues relating to prior express consent by robocall 
consumers on numerous occasions. The Commission believes that these 
sources grant it sufficient authority to adopt the proposed rules 
contained herein, and it seeks comment on this conclusion. Are there 
any other sources of legal authority the Commission should rely on? Do 
any of these sources of authority not apply to the rules it proposes?

F. Proposed Effective Date

    21. The Commission proposes that the rule changes set forth herein 
go into effect upon publication of an Order in the Federal Register, or 
for those rules that require OMB review under the Paperwork Reduction 
Act, upon OMB approval and publication of the notice of approval in the 
Federal Register. The Commission seeks comment on whether this proposed 
timeline provides a sufficient opportunity for affected parties to 
comply with any new requirements imposed by the proposed rules or 
whether a longer implementation period is warranted. The Commission 
also seeks comment on whether these effective dates should be the same 
for all affected parties, or whether it should provide more time for 
small entities to comply.

Initial Regulatory Flexibility Analysis

    22. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in this Notice of Proposed Rulemaking (NPRM). Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
on the NPRM provided on the first page of this document. The Commission 
will send a copy of the NPRM, including this IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration. In addition, the 
NPRM and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    23. The NPRM seeks comment on proposals to clarify and strengthen 
the right of consumers to grant or revoke consent to receive robocalls 
and robotexts under the TCPA. Under the Telephone Consumer Protection 
Act of 1991 (TCPA), certain types of calls and texts may only be sent 
with the prior express consent of the called party. The ability of 
consumers to exercise this right to provide or revoke consent is 
essential to protecting the privacy rights of consumers by allowing 
them to decide which callers may communicate with them via robocalls 
and robotexts.
    24. The NPRM proposes to codify prior Commission rulings and adopt 
new requirements to ensure that the requirements relating to providing 
or revoking consent under the TCPA are clear to both callers and 
consumers. Specifically, the NPRM proposes to make clear that consumers 
may revoke prior express consent in any reasonable manner that clearly 
expresses a desire not to receive further calls or text messages, 
including using words such as ``stop,'' ``revoke,'' ``end,'' or ``opt 
out,'' and that callers may not infringe on that right by designating 
an exclusive means to revoke consent that precludes the use of any 
other reasonable method. The NPRM also proposes to require that callers 
honor do-not-call and revocation requests within a reasonable time not 
to exceed 24 hours of receipt. Further, the NPRM reiterates that 
consumers only need to revoke consent once to stop getting all calls 
and texts from a specific entity. It also proposes to codify that a 
one-time text message confirming a consumer's request that no further 
text messages be sent does not violate the TCPA or the Commission's 
rules as long as the confirmation text merely confirms the called 
party's opt-out request, does not include any marketing or promotional 
information, and the text is the only additional message sent to the 
called party after receipt of the opt-out request. Finally, the NPRM 
proposes to require wireless providers to honor a customer's request to 
cease autodialed, prerecorded voice, and artificial voice calls, and 
automated texts.

B. Legal Basis

    25. The proposed rules are authorized under Sec. Sec.  4(i), 4(j), 
and 227 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 154(j), 227, and Sec.  8 of the TRACED Act.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    26. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    27. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the Small 
Business Administration's (SBA) Office of Advocacy, in general a small 
business is an independent business having fewer than 500 employees. 
These types of small businesses represent 99.9% of all businesses in 
the United States, which translates to 32.5 million businesses.
    28. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2020, there were 
approximately 447,689 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    29. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate there were 
90,075 local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States. Of 
this number, there were 36,931 general purpose governments (county, 
municipal, and town or township) with populations of less than 50,000 
and 12,040 special purpose governments--independent school districts 
with enrollment populations of less than 50,000. Accordingly, based on 
the 2017 U.S. Census of Governments data, the Commission estimates that 
at least 48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    30. Telemarketing Bureaus and Other Contact Centers. This industry

[[Page 42039]]

comprises establishments primarily engaged in operating call centers 
that initiate or receive communications for others-via telephone, 
facsimile, email, or other communication modes-for purposes such as (1) 
promoting clients products or services, (2) taking orders for clients, 
(3) soliciting contributions for a client, and (4) providing 
information or assistance regarding a client's products or services. 
These establishments do not own the product or provide the services 
they are representing on behalf of clients. The SBA small business size 
standard for this industry classifies firms having $16.5 million or 
less in annual receipts as small. According to U.S. Census Bureau data 
for 2017, there were 2,250 firms in this industry that operated for the 
entire year. Of this number 1,435 firms had revenue of less than $10 
million. Based on this information, the majority of firms in this 
industry can be considered small under the SBA small business size 
standard.
    31. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 594 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 511 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    32. In cases where consumers invoke their right to grant or revoke 
consent to small entity callers to receive robocalls and robotexts 
under the TCPA, these callers may need to implement new methods to 
record and track such requests to honor them within the specified 
timeframes. At this time however, the Commission is not in a position 
to determine whether, if adopted, its proposals and the matters upon 
which it seeks comment will require small entities to hire 
professionals to comply, and cannot quantify the cost of compliance 
with the potential rule changes discussed herein. It anticipates the 
information it receives in comments including where requested, cost and 
benefit analyses, will help the Commission identify and evaluate 
additional relevant compliance matters for small entities, including 
compliance costs and other burdens that may result from the proposals 
and inquiries it makes in the NPRM.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    33. The RFA requires an agency to describe any significant 
alternatives, specifically small business alternatives, that it has 
considered in reaching its proposed approach, which may include the 
following four alternatives (among others): ``(1) the establishment of 
differing compliance or reporting requirements or timetables that take 
into account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for such small entities; (3) the 
use of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    34. The NPRM specifically seeks comment on any costs or burdens 
imposed on callers to implement any of the proposals set forth in the 
NPRM which could help the Commission identify burdens for small 
entities and other actions that can be taken to minimize impact on 
small entities. For example, the NPRM proposes and seeks comment on 
what constitutes a ``reasonable'' manner to revoke consent, noting that 
it is not without limitation. An alternative consideration is whether 
callers will have an opportunity to demonstrate that a consumer has not 
used a reasonable means to convey their revocation of consent request. 
Allowing this flexibility may reduce the burden on small entities' 
ability to respond to process revocation requests. The NPRM considers 
any compliance costs for small businesses if the proposed rules are 
adopted and seeks comment on ways to minimize any such burdens. The 
NPRM also proposes that callers must honor do-not-call and revocation 
requests within 24-hours, and seeks comment on whether other timeframes 
should be considered, including whether small entities may benefit from 
longer timeframes to implement these requests. Many of the requirements 
noted in the NPRM have been adopted by the Commission in rulings that 
date back many years. As a result, the Commission anticipates that many 
callers have already made efforts to comply with these obligations and 
may have no new burdens.
    35. The Commission expects to consider the economic impact on small 
entities, as identified in comments filed in response to the NPRM and 
this IRFA, in reaching its final conclusions and taking action in this 
proceeding.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    36. None.

List of Subjects in 47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping 
requirements, Telecommunications, Telephone.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Proposed Rules

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

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 continues to read as follows:

    Authority:  47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220, 
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262, 
276, 403(b)(2)(B), (c), 616, 617, 620, 1401-1473, unless otherwise 
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.

Subpart L--Restrictions on Telemarketing, Telephone Solicitations, 
and Facsimile Advertising

0
2. Section 64.1200 is amended by revising paragraph (a)(9)(i)(F) and 
adding paragraphs (a)(9)(v), (10), and (11) and revising paragraph 
(d)(3) to read as follows:


Sec.  64.1200   Delivery restrictions.

* * * * *
    (a) * * *
    (9) * * *
    (i) * * *
    (F) The package delivery company must offer package recipients the 
ability to opt out of receiving future delivery notification calls and 
messages and

[[Page 42040]]

must honor an opt-out request immediately; and,
* * * * *
    (v) Calls made by a wireless service provider to an existing 
subscriber, provided that all of the following conditions are met:
    (A) voice calls and text messages are initiated by a wireless 
service provider only to an existing subscriber of that wireless 
service provider at a number maintained by the wireless service 
provider;
    (B) voice calls and text messages must state the name and contact 
information of the wireless provider (for voice calls, these 
disclosures must be made at the beginning of the call);
    (C) voice calls and text messages must not include any 
telemarketing, solicitation, or advertising;
    (D) voice calls and text messages must be concise, generally one 
minute or less in length for voice calls or 160 characters or less in 
length for text messages;
    (E) a wireless service provider may initiate a maximum of three 
voice calls or text messages during any 30-day period;
    (F) a wireless service provider must offer recipients within each 
message an easy means to opt out of future such messages; voice calls 
that could be answered by a live person must include an automated, 
interactive voice- and/or key press-activated opt-out mechanism that 
enables the call recipient to make an opt-out request prior to 
terminating the call; voice calls that could be answered by an 
answering machine or voice mail service must include a toll-free number 
that the consumer can call to opt out of future calls; text messages 
must inform recipients of the ability to opt out by replying ``STOP''; 
and,
    (G) a wireless service provider must honor opt-out requests 
immediately.
* * * * *
    (10) A called party may revoke prior express consent, including 
prior express written consent, to receive calls or text messages made 
pursuant to paragraphs (a)(1) through (3) of this section by using any 
reasonable method to clearly express a desire not to receive further 
calls or text messages from the caller or sender. The use of text 
message, voicemail, or email to any telephone number or email address 
at which the consumer can reasonably expect to reach the caller to 
revoke consent creates a rebuttable presumption that the consumer has 
revoked consent absent evidence to the contrary. The sending of 
``STOP'' or a similar text message that reasonably conveys a desire to 
not receive further messages in reply to an incoming text message 
creates a presumption that the consumer has revoked consent in a 
reasonable way. Callers or senders of text messages covered by 
paragraphs (a)(1) through (3) of this section may not designate an 
exclusive means to request revocation of consent. Should the text 
initiator choose to use a texting protocol that does not allow reply 
texts, it must provide a clear and conspicuous disclosure on each text 
to the consumer that two-way texting is not available due to technical 
limitations of the texting protocol, and clearly and conspicuously 
provide reasonable alternative ways to revoke consent. All requests to 
revoke prior express consent or prior express written consent made in 
any reasonable manner must be honored in a reasonable time not to 
exceed 24 hours from receipt of such request.
    (11) A one-time text message confirming a request to revoke consent 
from receiving any further text messages does not violate paragraphs 
(a)(1) through (2) of this section as long as the confirmation text 
merely confirms the text recipient's revocation request and does not 
include any marketing or promotional information, and is the only 
additional message sent to the called party after receipt of the 
revocation request. To the extent that the text recipient has consented 
to several categories of text messages from the text sender, the 
confirmation message may request clarification as to whether the 
revocation request was meant to encompass all such messages; the sender 
must cease all further texts absent further clarification that the 
recipient wishes to continue to receive certain text messages.
* * * * *
    (d) * * *
    (3) Recording, disclosure of do-not-call requests. If a person or 
entity making an artificial or prerecorded-voice telephone call 
pursuant to an exemption under Sec.  64.1200(a)(3)(ii) through (v) or 
any call for telemarketing purposes (or on whose behalf such a call is 
made) receives a request from a residential telephone subscriber not to 
receive calls from that person or entity, the person or entity must 
record the request and place the subscriber's name, if provided, and 
telephone number on the do-not-call list at the time the request is 
made. Persons or entities making such calls (or on whose behalf such 
calls are made) must honor a residential subscriber's do-not-call 
request within a reasonable time from the date such request is made. 
This period may not exceed 24 hours from the receipt of such request. 
If such requests are recorded or maintained by a party other than the 
person or entity on whose behalf the call is made, the person or entity 
on whose behalf the call is made will be liable for any failures to 
honor the do-not-call request. A person or entity making an artificial 
or prerecorded-voice telephone call pursuant to an exemption under 
Sec.  64.1200(a)(3)(ii) through (v) or any call for telemarketing 
purposes must obtain a consumer's prior express permission to share or 
forward the consumer's request not to be called to a party other than 
the person or entity on whose behalf a call is made or an affiliated 
entity.
* * * * *
[FR Doc. 2023-13821 Filed 6-28-23; 8:45 am]
BILLING CODE 6712-01-P