The Federal Communications Commission (FCC) has issued a Report and Order and Further Notice of Proposed Rulemaking that would impose new requirements for the blocking of text messages by mobile wireless providers and propose new limitations on senders of text messages.  The document has been circulated for consideration by the FCC at its March 2023 open meeting and the FCC’s ultimate resolution of the issues is subject to change.

In the Report and Order, which would be effective 30 days after publication in the Federal Register, the FCC “for the first time require[s] mobile wireless providers to take action to protect consumers from unwanted and illegal text messages.”  Pursuant to the Report and Order, mobile wireless providers would have to block texts that purport to be from numbers on a reasonable Do-Not-Originate list, which include numbers that purport to be from invalid, unallocated, or unused North American Numbering Plan numbers, and numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked.  To mitigate the risk of erroneous blocking, the FCC would require mobile wireless providers to maintain a single point of contact for senders to report erroneously blocked calls and to post the contact information for their single point of contact on a public-facing website.  In explaining its action, the FCC states that its plan to require blocking rather than continue to rely on industry’s voluntary efforts to block “is in part the result of the heightened risk of text messages as both annoyance and vehicles for fraud.”

In the Further Notice of Proposed Rulemaking, the FCC seeks comment on proposals to:

  • Require terminating mobile wireless providers to investigate and potentially block texts from a sender after they are on notice from the FCC that the sender is transmitting suspected illegal texts.

  • Require prior express invitation or permission in writing for text messages to wireless numbers on the national Do-Not-Call (DNC) Registry.  The FCC notes that although it has stated that text messages are “calls” for purposes of the Telephone Consumer Protection Act (TCPA), it has never stated that text messages are subject to DNC protections.  The proposal would “clarify” that, before sending a marketing text to a wireless number on the DNC Registry, the texter must have the consumer’s prior express invitation or permission, which must be evidenced by a signed, written agreement between the consumer and seller, which states that the consumer agreed to be contacted by this seller and includes the telephone number to which the calls may be placed.

  • Ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent (i.e. “the lead generator loophole”).  The proposal responds to concerns that lead generators and data brokers use hyperlinked lists (e.g. lists of “partner companies”) to harvest consumer telephone numbers and consent agreements on a website and pass that information to telemarketers and scammers.  The FCC is considering amending its TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page.

Comments on the Further Notice of Proposed Rulemaking would have to be filed on or before 30 days after publication in the Federal Register and reply comments would have to be filed on or before 60 days after publication in the Federal Register.

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