At its upcoming December 13, 2023, meeting, the FCC is expected to adopt a Second Report and Order, Second Further Notice of Proposed Rulemaking (FNPRM) and Waiver Order (Waiver) in Docket 02-278 as its attempts to stop the growing problem of illegal robotexting. According to the Commission, the Order would enlist service providers in the fight against illegal text messaging and would close the lead generator loophole that has resulted in unscrupulous robocalls and robotexters inundating consumers with unwanted and illegal robocalls and robotexts.
The problem of illegal robotexting is clearly growing. The Federal Trade Commission reports that text messaging scams cost consumers $86 million in 2020 and $326 million in 2022. Other reporting services claim the cost is actually $20 billion per year! The FCC concludes that the annual cost is $16.5 billion.
To combat this, the Order would do the following:
- Require terminating mobile wireless providers to block all texts from a particular number when notified by the Commission of illegal texts from that number, unless the provider’s investigation finds the text is legal.
- Codify that the National Do-Not-Call (DNC) Registry’s protections extend to text messages. Texters must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry
- Encourage providers to make email-to-text, a major source of illegal texts, a service that consumers proactively opt into.
- Close the lead generator loophole by making unequivocally clear that comparison shopping websites must get consumer consent one seller at a time, and thus prohibit abuse of consumer consent by such websites.
In the FNPRM, the FCC:
- Proposes and seeks comments on additional text blocking options, including requiring originating mobile wireless providers to block texts from a particular number when notified by the Commission of illegal texts from that number or risk all their texts being blocked.
- Seek comments on the current state of text authentication.
- Seeks comments on the traceback process for texting and whether to adopt a requirement for mobile wireless providers to respond to traceback requests from the Commission and law enforcement.
- Proposes and seeks comments on requiring mobile wireless providers to make email-to-text an opt-in service.
Industry comments regarding the FNPRM are due 30 days after it appears in the Federal Register.
The Waiver Order would allow mobile wireless providers to use the Reassigned Numbers Database to determine whether a number has been disconnected after the date of illegal texts in the Commission’s notification to avoid blocking of texts from reassigned numbers. The waiver would be in effect for 12 months.
The Order will take effect 30 days after publication in the Federal Register.