[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Proposed Rules]
[Pages 5177-5183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28833]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket Nos. 02-278, 21-402; FCC 23-107; FR ID 194251]
Targeting and Eliminating Unlawful Text Messages; Implementation
of the Telephone Consumer Protection Act of 1991
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks comment on several issues. First, the Commission
proposes a text blocking requirement following Commission notification
and seeks comment on other options for requiring providers to block
unwanted or illegal texts. Second, the Commission seeks
[[Page 5178]]
further comment on text message authentication, including the status of
any industry standards in development. Finally, the Commission proposes
to require providers to make email-to-text services opt in.
DATES: Comments are due on or before February 26, 2024 and reply
comments are due on or before March 11, 2024.
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: https://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: Jerusha Burnett of the Consumer Policy
Division, Consumer and Governmental Affairs Bureau, at
[email protected], 202 418-0526 or 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 Second
Further Notice of Proposed Rulemaking (Second FNPRM), in CG Docket Nos.
02-278 and 21-402; FCC 23-107, adopted on December 13, 2023, and
released on December 18, 2023. The full text of this document is
available online at https://docs.fcc.gov/public/attachments/FCC-23-107A1.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 through 1.1216. 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 Second 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.
Providing Accountability Through Transparency Act
The Providing Accountability Through Transparency Act, Public Law
118-9, requires each agency, in providing notice of a rulemaking, to
post online a brief plain-language summary of the proposed rule. The
required summary of the Second NPRM is available at https://www.fcc.gov/proposed-rulemakings.
Synopsis
1. Text Blocking. The Commission proposes and seeks comment on
additional text blocking options to better protect consumers from
illegal texts. Specifically, the Commission proposes and seeks comment
on extending the text blocking requirement to include originating
providers, and to require all immediate downstream providers to block
the texts from providers that fail to block after Commission
notification. The Commission also seeks additional comment on whether
to require this blocking to be based on number, source, the
substantially similar traffic standard, or some other standard. Next
the Commission seeks comment on requiring providers to block texts
based on content-neutral reasonable analytics. Third, the Commission
seeks comment on traceback for text messaging, including whether to
adopt a traceback response requirement for text messaging. Fourth, the
Commission seeks comment on any other rules to effectively protect
consumers from illegal texts. Finally, the Commission seeks comment on
any additional protections that may be necessary in case of erroneous
blocking.
2. Expanding the Mandatory Text Blocking Requirement to Originating
Providers and Adding a Downstream Provider Blocking Requirement. The
Commission proposes and seeks comment on extending the requirement to
block following Commission notification of illegal texts to other
providers generally, and originating providers specifically. The
Commission believes that originating providers are similar to gateway
or originating voice service providers in that they are the first U.S.-
based provider in the text path and that applying an analogous rule to
originating providers could help ensure that these providers are
properly incentivized to stop illegal texts even before the Commission
sends any notice. The Commission seeks comment on this view.
3. The Commission seeks comment on whether and, if so, how to
define originating providers here. Is the originating provider the
first provider in the text path, and therefore in a similar position to
a gateway or originating voice service provider? Are there other
providers in the path that are more similar to a gateway provider?
Alternatively, should the Commission apply these rules to some other
entity in the chain to better protect consumers? The call blocking
rules help hold bad-actor voice service providers responsible for the
calls they allow onto the network by denying those voice service
providers access to the network entirely when they have demonstrated
noncompliance. Is there a particular type of entity in the texting
ecosystem that is more likely to either intentionally
[[Page 5179]]
or negligently shield those sending illegal texts?
4. The Commission proposes and seeks comment on requiring
originating providers to block all texts from a particular source
following Commission notification. Is this an appropriate standard for
blocking? How might originating providers determine the source of a
particular text or texts in order to comply with this rule?
Alternatively, should the Commission require blocking based on the
number or numbers, as the Commission does for terminating providers? If
so, how effective is such a requirement? If not, should the Commission
also change the standard for terminating providers to match the
standard for originating providers, or do originating providers have
access to more information, making a broader requirement to block based
on source appropriate?
5. Should the Commission limit the length of time for which
blocking is required? If so, how long should the Commission require
providers to block? Alternatively, should the Commission require
originating and/or terminating providers to block using the
substantially similar standard applied in the call blocking rules? The
Commission believes that texting may present concerns unique from
calling that justify a different standard, or require additional
guidance for compliance. For example, while a voice service provider
will not have the content of a particular call prior to that call
reaching the recipient, a texting provider likely does have access to
this information. Given that, should the Commission require that
blocking be content as well as competitively neutral? Are there any
other standards the Commission should consider?
6. The Commission seek comment on whether the process for voice
service providers should be applied here to texting. The current rules
for call blocking lay out a detailed process that must be followed
before requiring all immediate downstream providers to block all of an
identified voice service provider's traffic. Is this process
appropriate for the texting environment, or are there differences
between texting and calling that justify modifications? Several
commenters expressed concerns about the delays inherent in this
process. While the process works well for calling, delays may have
different consequences in the texting context. Is a delay particularly
significant when dealing with texts compared to calls? Why or why not?
If so, are there changes the Commission could make to address this
issue while still ensuring that providers are afforded sufficient due
process? For example, should the Commission, as is done in the calling
context, allow 14 days for the originating provider to investigate and
respond following the Notification of Suspected Illegal Texts or should
it change that time frame? Should the Commission establish a different
docket for text blocking Orders, or use the same docket used for call
blocking?
7. Requiring Blocking of Texts Based on Reasonable Analytics. The
Commission seeks comment on requiring or incentivizing providers to
block texts based on reasonable analytics. The call blocking rules
provide a safe harbor for the blocking of unwanted calls based on
reasonable analytics on an opt-out basis. In addition, the call
blocking rules provide a safe harbor for the blocking of calls without
consumers' consent and calls that are highly likely to be illegal based
on reasonable analytics. In both cases, the Commission requires that
analytics are applied in a non-discriminatory, competitively neutral
manner. The Commission also recently sought comment on requiring
terminating voice service providers to offer opt-out blocking services
for calls that are highly likely to be illegal. The Commission has not
yet addressed text blocking based on reasonable analytics.
8. The Commission seeks comment on whether and how to define
reasonable analytics for this purpose. The record indicates that many
providers already make use of analytics or other techniques to block
illegal texts. What analytics do providers use to identify unwanted or
illegal texts? If providers are reluctant to share specifics to avoid
tipping off bad actors, the Commission seeks comment on broad criteria
that providers may use. For example, a call-blocking program might
block calls based on a combination of factors, such as: large bursts of
calls in a short timeframe, low average call duration, low call
completion ratios, invalid numbers placing a large volume of calls.
9. The Commission seeks comment on whether, and to what extent,
providers use volumetric triggers to identify bad traffic. Do any of
the call-blocking reasonable analytics factors apply to text and, if
so, which ones? Are there other content-neutral factors that are more
likely to indicate that a text is illegal that do not apply in the
calling context? If the Commission adopts such a rule, are there any
necessary modifications the Commission should make to accommodate small
businesses? As noted above, the content of a text is available to the
provider at the time that blocking occurs, which is not generally true
for calls. If the Commission requires providers to block based on
reasonable analytics, should the Commission require that these
analytics be content-neutral? Should the Commission also require that
the blocking be non-discriminatory and competitively neutral?
Alternatively, are there ways the Commission could encourage this
blocking without requiring it? Are there any other issues the
Commission should consider?
10. Because texting is currently classified as an information
service, the Commission does not believe that providers need safe
harbor protections to engage in this type of blocking. The Commission
seeks comment on this belief. Do providers risk liability when they
block erroneously? If so, what can the Commission do to reduce that
risk while still ensuring that wanted, lawful texts reach consumers?
11. Alternative Approaches. The Commission seeks comment on
alternative blocking or mitigation rules the Commission could adopt to
target unwanted and illegal texts and better protect consumers. Are
there approaches the Commission has not considered here that would stop
illegal texts and protect consumers? What can the Commission do to
encourage or require providers to adopt these approaches? For example,
can the Commission take steps to encourage information sharing between
providers?
12. Protections Against Erroneous Blocking. If the Commission
adopts additional text blocking requirements, should the Commission
also adopt additional protections against erroneous text blocking? The
rules already require providers to provide a point of contact for
blocking issues. Considering that providers can and do block texts, is
this sufficient, or are other protections necessary? If so, what
protections should the Commission adopt? For example, should the
Commission create a white list for ``legitimate research organizations
and/or research campaigns'' or other entities, or would doing so raise
legal or policy concerns? Similarly, should the Commission require some
form of notification when texts are blocked, similar to the requirement
when calls are blocked based on reasonable analytics? If so, how can
providers send a notification, technically? Should the Commission
require notification only to certain categories of blocking? Or, should
the Commission require providers to give advance notice when a number
is flagged as suspicious and may be blocked along with several other
protections? Alternatively, should the Commission adopt the same
protections already in place for erroneous blocking
[[Page 5180]]
of calls? What are the risks and benefits of each approach?
13. Text Message Authentication. The Commission seeks additional
comment on text message authentication and spoofing. The Commission has
so far declined to adopt authentication requirements for texting. The
record thus far is mixed on the feasibility of such a requirement, with
commenters noting that the STIR/SHAKEN caller ID authentication system
is designed to work only on internet Protocol (IP) networks. Further,
the record indicates that number spoofing is comparatively rare in SMS
and MMS. The Commission believes it is important to continue to build a
record on these issues and ensure awareness of any new developments or
concerns. The Commission therefore seeks further comment on the need
for and feasibility of text authentication. In particular, commenters
should address whether number spoofing is an issue in text messaging
and, if so, the extent of the problem. If number spoofing is uncommon,
are there steps the Commission can take to ensure that it remains the
exception rather than the rule? Do bad actors use other spoofing
techniques, such as identity spoofing? If so, what can the Commission
do to address this problem? Commenters should also discuss any new or
in-process technical standards for authentication in text messaging,
including their current status and any timelines for development. What
issues will these new tools address? If the new technical standards are
designed to prevent number spoofing, is this evidence of a more
significant spoofing issue than commenters acknowledged in response to
the Second FNPRM? If so, should the Commission act more quickly in this
area, rather than waiting for the standards bodies to finish their
work?
14. The Commission seeks comment on whether it should require
industry to regularly provide updates with its progress on text
authentication. The Commission believes doing so would ensure that the
Commission has the most up-to-date information available without having
to adopt further notices of proposed rulemaking covering this topic. Is
this belief correct? If so, how often should the Commission require
industry to provide updates and how should the Commission determine
when further updates are no longer required? For example, should the
Commission set a six-month cycle for updates over the next two years?
Or should the Commission require some other update cycle and endpoint?
15. Traceback. Traceback has been a key part of the Commission's
strategy for combating illegal calls. The Commission seeks comment on
whether it should require a response to traceback requests for texting.
The Commission seeks comment on requiring providers to respond to
traceback requests from the Commission, civil or criminal law
enforcement within 24 hours, consistent with the existing rule for
gateway voice service providers and the recently adopted rule for all
voice service providers that took effect on January 8, 2024, see 88 FR
43446-01 (July 10, 2023). Should the Commission also include the
industry traceback consortium as an entity authorized to conduct
traceback of texts, or is there some other entity that should be
included? Is traceback for texting similar enough to traceback for
calls for such a requirement to be effective? Are there any changes the
Commission should make to the rule to ensure that traceback works for
texts? How should the Commission handle aggregators and cloud
platforms? Are there industry efforts that are already in operation,
such as CTIA--The Wireless Association's Secure Messaging Initiative,
that could replace or complement a traceback requirement? Are there
other issues the Commission should consider in adopting a traceback
requirement?
16. The Commission seeks comment on the specifics of the traceback
process for texts, as well as any obstacles to industry-led traceback
efforts that may work alongside or in place of rules the Commission may
establish. Are tracebacks typically conducted for texting? If so, what
does the process look like? Are there types of providers that are
routinely reluctant to respond to these requests? Is information from
traceback processes shared and then incorporated into blocking
decisions? Are there network modifications, standards, or changes to
software or hardware that would enable efficient texting traceback? If
the Commission adopts a traceback requirement for texting, are there
any necessary modifications the Commission should make to accommodate
small business? Is there anything else the Commission should know about
traceback for texting?
17. E-Mail-to-Text Messages. The Commission proposes to require
providers to make email-to-text an opt in service, so that subscribers
wishing to receive these types of messages would first have to opt in
to the service. Would such a rule reduce the quantity of fraudulent
text messages consumers receive? Does the anonymity of email-to-text
make it more attractive to fraudulent texters? Commenters should
discuss any drawbacks to requiring providers to block such messages if
the consumer has not opted in to such service. For example, would this
result in blocking important or urgent messages? If so, how could the
Commission reduce this risk? Are there alternatives to making this
service opt in that would have a similar effect? If so, what are they
and how would they compare? Commenters should discuss how the
Commission should define ``email-to-text service.'' Are there analogous
services that should be covered, e.g., voicemail-to-text? The
Commission seeks comment on the details of any opt-in requirement and
if the opt-in should be in writing. Must it be stand-alone and
conspicuous? Will providers have the burden of demonstrating opt-in
decisions? Are there any other issues the Commission should consider in
adopting a rule?
18. Further Efforts to Assist Small Businesses with Compliance. The
Commission seeks further comment on how the Commission can refine and
expand its efforts to assist businesses, particularly small businesses,
in complying with the one-to-one consent requirement. The Commission
has determined based on the record that prior express written consent
required under the Telephone Consumers Protection Act (TCPA) must be
given to one seller at a time. Some commenters raised concerns that
this requirement will increase costs or otherwise disadvantage small
business lead generators and/or small business lead buyers. The
Commission, therefore, is committed to monitoring the impact that the
rule has on these businesses and to assist small businesses with
complying with the one-to-one consent rule. The Commission seeks
comment on whether and how it can further minimize any potential
economic impact on small businesses in complying with the one-to-one
consent requirement for prior express written consent under the TCPA.
Are there ways to further clarify or refine this requirement to further
minimize any compliance costs? What impact would such refinements have
on consumers? Are there further outreach efforts or other ways the
Commission can assist small businesses in complying with the one-to-one
consent rule?
19. Benefits and Costs. The Commission estimates that the total
harm of unwanted and illegal texts is at least $16.5 billion. Assuming
a nuisance harm of five cents per spam text, the Commission estimates
total nuisance harm to be $11.3 billion (i.e., five cents
[[Page 5181]]
multiplied by 225.7 billion spam texts). Further, the Commission
estimates that an additional $5.3 billion of harm occurs annually due
to fraud. Previously, the Commission estimated the harm due to fraud
from scam texts at $2 billion. The Commission revised this figure
upward in proportion with the increase in spam texts, resulting in an
estimate of $5.3 billion. The Commission seeks comment on these
estimates of harm and on the costs of the proposals to reduce the harm
of unwanted and illegal texts. The Commission will analyze any detailed
cost data received in comments.
20. Digital Equity and Inclusion. The Commission, as part of its
continuing effort to advance digital equity for all, including people
of color and others who have been historically underserved,
marginalized, and adversely affected by persistent poverty and
inequality, invites comment on any equity-related considerations and
benefits (if any) that may be associated with the proposals and issues
discussed herein. Specifically, the Commission seeks comment on how the
proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility.
21. Legal Authority. The Commission seeks comment on its authority
to adopt several issues: (i) additional blocking requirements and
related approaches to protect consumers from illegal texts; (ii) text
message authentication; and (iii) whether to make email-to-text an opt-
in service. The Commission has authority to regulate certain text
messages under the TCPA, particularly with regard to messages sent
using an autodialer and without the consent of the called party. The
Commission seeks comment on whether it has legal authority to adopt
rules addressing these issues under the TCPA or the TRACED Act. For
example, is the Commission's TCPA jurisdiction sufficient to support
the blocking proposals, and does the TRACED Act provide the Commission
with additional authority to adopt these rules?
22. Similarly, does the TCPA grant the Commission sufficient
authority to adopt the rules regarding requiring email-to-text to be an
opt-out service? Commenters should also discuss whether the Commission
has authority for the proposals under section 251(e) of the
Communications Act, which provides the Commission with ``exclusive
jurisdiction over those portions of the North American Numbering Plan
that pertain to the United States,'' particularly to adopt any
authentication, traceback, or blocking requirements. The Commission
found authority to implement STIR/SHAKEN for voice service providers
under section 251(e) of the Act in order to prevent the fraudulent
exploitation of numbering resources. Does section 251(e) of the Act
grant the Commission authority to adopt implementation of
authentication for text messages?
23. The Commission seeks comment on the authority under the Truth
in Caller ID Act for these proposals. The Commission found that it has
authority under this statute to adopt a blocking requirement in the
Text Blocking Order, 88 FR 21497 (April 11, 2023), and FNPRM, 88 FR
20800 (April 7, 2023). The Commission also found authority under this
provision to mandate STIR/SHAKEN implementation, explaining that it was
``necessary to enable voice service providers to help prevent these
unlawful acts and to protect voice service subscribers from scammers
and bad actors.'' The Commission seeks comment on whether that same
reasoning applies here. The Commission also seeks comment on whether it
has authority for these proposals under Title III of the Act. Are there
any other sources of authority the Commission could rely on to adopt
any of the rules discussed in the Second FNPRM?
Initial Regulatory Flexibility Analysis
24. 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
the Second 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 in the Second FNPRM. The Commission will
send a copy of the entire Second FNPRM, including the IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA).
In addition, the Second FNPRM and the IRFA (or summaries thereof) will
be published in the Federal Register.
25. Need for, and Objectives of, the Proposed Rules. In the Second
FNPRM, the Commission proposes additional action to stop unwanted and
illegal text messages that may harass and defraud consumers.
Specifically, the Commission proposes extending the call blocking
requirements to require all downstream providers to block the texts
from upstream providers that fail to block after Commission
notification. The Commission also seeks comment on requiring providers
to block texts based on content-neutral analytics, and on whether it is
appropriate to adopt a 24-hour traceback response requirement for text
messaging. The Second FNPRM also requests comment on alternative
approaches to protect consumers from unwanted texts, and any additional
protections that may be necessary in case of erroneous blocking. In
addition, the Commission seeks comment on the viability of text
authentication, and whether it should require industry updates on its
feasibility. Finally, the Commission proposes requiring providers to
make email-to-text an opt-in service.
26. Legal Basis. The proposed action is authorized pursuant to
sections 4(i), 4(j), 227, 301, 303, 307, and 316 of the Communications
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 227, 301, 303, 307,
and 316.
27. 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; and (3)
satisfies any additional criteria established by the SBA.
28. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission's actions, over time, may affect small
entities that are not easily categorized at present. The Commission
therefore describes, at the outset, three broad groups of small
entities that could be directly affected herein. First, while there are
industry specific size standards for small businesses that are used in
the regulatory flexibility analysis, according to data from the SBA'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 33.2 million businesses.
29. 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
[[Page 5182]]
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.
30. 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.''
31. Wireless Carriers and Service Providers. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with an SBA small business size standard applicable to these service
providers. The SBA small business 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 that
operated in this industry for the entire year. Of this 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.
32. 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.
33. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities. The Second FNPRM includes
proposals that may alter the Commission's current information
collection, reporting, recordkeeping, or compliance requirements for
small entities. Specifically, the proposal to extend call blocking
mandates to require all downstream providers to block the texts from
upstream providers that fail to block after Commission notification,
and requiring providers to block texts based on content-neutral
analytics would create new obligations for small entities and other
providers. Similarly, establishing a 24-hour traceback response
requirement for text messaging and requiring providers to make email-
to-text an opt in service would also impose new compliance obligations
on all providers, including small businesses. Additional blocking
requirements, if adopted, such as requiring originating providers to
block texts after notification from the Commission that the texts are
likely to be illegal should not be a burden for small entities due to
the fact that mobile wireless providers are currently blocking texts
that are likely to be illegal. The Commission anticipates that the
information it will receive relating to cost and benefit analyses will
help identify and evaluate relevant compliance matters for small
entities, including compliance costs and other burdens that may result
from the proposals and inquiries we make in the Second FNPRM.
34. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered. The RFA requires an
agency to describe any significant, specifically small business,
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.'' In the Second FNPRM the Commission
considered and seeks comment on several alternatives that may
significantly impact small entities. As the Commission evaluates
additional blocking requirements to protect consumers from illegal
texts, the Commission seeks comment on how to define originating
providers, and whether it should apply these rules to some other entity
in the chain to better protect consumers. The Commission proposes
blocking messages based on their source, but considers alternatively
whether they should be blocked on other criteria such as traffic that
is ``substantially similar'' to blocked texts. In addition, the
Commission seeks comment on alternatives to requiring providers to
block texts based on content-neutral reasonable analytics. The
Commission also requests comment on alternatives to the proposed
blocking or mitigation rules that would help to protect consumers from
unwanted and illegal texts. The Commission expects to fully consider
whether any of the costs associated with the proposed text blocking
requirements can be alleviated for small entities and any alternatives
to minimize the economic impact for small entities following the review
of comments filed in response to the Second FNPRM.
35. 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
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 64 as follows:
[[Page 5183]]
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.
Subpart L--Restrictions on Telemarketing, Telephone Solicitation,
and Facsimile Advertising
0
2. Amend Sec. 64.1200 by adding paragraph (s) to read as follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(s) A mobile wireless provider must:
(1) A terminating mobile wireless provider must, upon receipt of a
Notification of Illegal Texts from the Commission through its
Enforcement Bureau, take the actions described in this paragraph
(s)(1), including, when required, blocking all texts from the
identified number or numbers. The Enforcement Bureau will issue a
Notification of Illegal Texts that identifies the number(s) used and
the date(s) the texts were sent or received; provide the basis for the
Enforcement Bureau's determination that the identified texts are
unlawful; cite the statutory or regulatory provisions the identified
texts violate; direct the provider receiving the notice that it must
comply with this section; and provide a point of contact to be used by
a subscriber to a listed number to dispute blocking. The Enforcement
Bureau's Notification of Illegal Texts shall give the identified
provider a reasonable amount of time to comply with the notice. The
Enforcement Bureau shall make the Notification of Illegal Texts in EB
Docket No. 23-418 available at https://www.fcc.gov/ecfs/search/search-filings. The provider must include a certification that it is blocking
all texts from the number or numbers and will continue to do so unless
the provider learns that the number has been reassigned, in which case
the provider shall promptly notify the Enforcement Bureau of this fact
and include any information it has obtained that demonstrates that the
number has been reassigned. If, at any time in the future, the provider
determines that the number has been reassigned, it shall notify the
Enforcement Bureau and cease blocking. The provider is not required to
monitor for number reassignments.
(2) If an originating provider, upon receipt of a Notification of
Suspected Illegal Texts from the Commission through its Enforcement
Bureau, take the actions described in this paragraph (s)(2), including,
when required, blocking all texts from the source. The Enforcement
Bureau will issue a Notification of Suspected Illegal Texts that
identifies with as much particularity as possible the suspected illegal
texts including the number(s) used and the date(s) the texts were sent
or received; provides the basis for the Enforcement Bureau's reasonable
belief that the identified texts are unlawful; cites the statutory or
regulatory provisions the identified texts appear to violate; and
directs the provider receiving the notice that it must comply with this
section. The Enforcement Bureau's Notification of Suspected Illegal
Texts shall give the identified provider a minimum of 14 days to comply
with the notice. Each notified provider must promptly investigate the
identified texts and report the results of that investigation to the
Enforcement Bureau within the timeframe specified in the Notification
of Suspected Illegal Texts.
(i) The provider must include a certification that it is blocking
all texts from the source, and will continue to do so unless:
(A) The provider determines that the identified texts are not
illegal, in which case it shall provide an explanation as to why the
provider reasonably concluded that the identified texts are not illegal
and what steps it took to reach that conclusion; or
(B) The provider learns that the number has been reassigned and the
source cannot be otherwise identified in a content-neutral and
competitively-neutral manner, in which case the provider shall promptly
notify the Enforcement Bureau of this fact and include any information
it has obtained that demonstrates that the number has been reassigned.
If, at any time in the future, the provider determines that the number
has been reassigned, it should notify the Enforcement Bureau and cease
blocking unless further blocking of the source can be done in a
content-neutral and competitively neutral manner.
(ii) If an originating mobile wireless provider fails to respond to
the Notification of Suspected Illegal Texts, the Enforcement Bureau
determines that the response is insufficient, the Enforcement Bureau
determines that the provider is continuing to originate texts from the
same source that could be blocked after the timeframe specified in the
Notification of Suspected Illegal Texts, or the Enforcement Bureau
determines based on the evidence that the texts are illegal despite the
provider's assertions, the Enforcement Bureau may issue an Initial
Determination Order to the provider stating the Bureau's initial
determination that the provider is not in compliance with this section.
The Initial Determination Order shall include the Enforcement Bureau's
reasoning for its determination and give the provider a minimum of 14
days to provide a final response prior to the Enforcement Bureau making
a final determination on whether the provider is in compliance with
this section.
(A) If an originating mobile wireless provider does not provide an
adequate response to the Initial Determination Order within the
timeframe permitted in that Order or continues to originate texts from
the same source onto the U.S. network, the Enforcement Bureau may issue
a Final Determination Order finding that the provider is not in
compliance with this section. The Final Determination Order shall be
made available in EB Docket No. 22-174 at https://www.fcc.gov/ecfs/search/search-filings. A Final Determination Order may be issued up to
one year after the release date of the Initial Determination Order and
may be based on either an immediate failure to comply with this rule or
a determination that the provider has failed to meet its ongoing
obligation under this rule to block all texts from the identified
source.
(B) When notified by the Commission through its Enforcement Bureau
that a Final Determination Order has been issued finding that an
originating mobile wireless provider has failed to block as required
under paragraph (s)(1) of this section, block and cease accepting all
texts received directly from the identified originating provider
beginning 30 days after the release date of the Final Determination
Order. This paragraph (s)(2) applies to any provider immediately
downstream from the originating provider. The Enforcement Bureau shall
provide notification by making the Final Determination Order in EB
Docket No. 22-418 available at https://www.fcc.gov/ecfs/search/search-filings. Providers must monitor EB Docket No. 22-174 and initiate
blocking no later than 30 days from the release date of the Final
Determination Order.
[FR Doc. 2023-28833 Filed 1-25-24; 8:45 am]
BILLING CODE 6712-01-P