On December 13, 2023, the Federal Communications Commission (“FCC”) voted to adopt a Second Report and Order modifying the Telephone Consumer Protection Act (“TCPA”) rules to further restrict “unwanted texts.” Among other things, the Order—a draft of which is available here (the final Order will be released in the coming days)—creates new do-not-call rules for text messages, extends blocking requirements to cover large originators of illegal texts, and closes the so-called “lead generator loophole,” which has been used by comparison shopping sites to send text messages without consumer consent.
Here’s what you need to know before the new rules come into force.
1. The Do-Not-Call Registry will now apply to text messages.
The FCC’s Order will require texters to have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the existing National Do-Not-Call Registry (“DNC Registry”), even if the text message is not sent via autodialer. The DNC Registry is jointly administered by the FCC and Federal Trade Commission, the latter of which requires telemarketers to have an express agreement, in writing, that includes the number to which calls may be made and the consumer’s signature, prior to calling a number that is on the DNC Registry. State telemarketing laws may have additional requirements for numbers on the DNC Registry.
Explicitly restricting texts to numbers on the DNC Registry is a logical next step for the FCC, which has already extended the DNC Registry to include wireless numbers and interpreted text messages to be “calls” within the meaning of the TCPA. Indeed, there was an argument that this requirement already applied to marketing text messages, even before the Order.
While there was some concern expressed in the public comments about security-related texts, such as two-factor authentication texts, the FCC rejected that concern by noting that senders of these messages can “simply avoid including solicitation or telemarketing in their texts.”
This requirement takes effect 30 days after publication of the Report and Order in the Federal Register.
2. The Lead Generator loophole will be eliminated.
The FCC determined that comparison shopping websites often obtain “flimsy claims of consent to bombard consumers with unwanted robocalls and robotexts.” The new rules make it “unequivocally clear” that prior express consent for marketing calls and texts must be collected for each individual sender. This “one-to-one consent will end the current practice of consumers receiving robocalls and robotexts from tens, or hundreds, of sellers.” If a single website seeks to obtain consent for multiple senders, it must obtain express consent separately for each sender. But the Order leaves some ambiguity about what “separately” means.
The FCC also took two additional steps to restrict lead generator texts and calls. First, the new rules require that the one-to-one consent “come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller,” including compliance with the E-SIGN Act (if necessary). And second, any robotexts and robocalls obtained from a lead generator website must be “logically and topically related” to the website. The FCC does not define “logically and topically related,” but instead says that the FCC will implement the standard based on “what consumers would clearly expect.”
The Order goes out of its way to recognize that comparison shopping websites “are useful both to consumers … and businesses, including small businesses seeking new customers.” Accordingly, the Order suggest that such sites can obtain one-to-one consent through a “variety of means,” including check box lists and clickthrough links to specific businesses. No matter how consent is obtained, the FCC reiterates that the burden of proving consent lies with the sender and reaffirms that consent is not transferrable or subject to sale.
The FCC’s Consumer and Governmental Affairs Bureau will announce the effective date for this requirement, which will be six months following publication of the Report and Order in the Federal Register.
3. Mobile wireless providers will now have to block all texts from numbers that the FCC finds to be as source of illegal texts.
In recent years, the FCC—which for decades prioritized universal call completion—has allowed (and in some cases, required) voice service providers to block calls from numbers that are originating illegal robocalls. Today’s Order extends similar blocking requirements to text messages.
Once the new rules take effect, mobile phone carriers will have a duty to block all texts coming from a number (or numbers) after the FCC’s Enforcement Bureau issues a notification that the number (or numbers) is generating illegal traffic. This blocking requirement will apply to the terminating mobile wireless provider only (not intermediate or gateway providers) and will not requiring the blocking of “substantially similar” traffic, as required in the analogous blocking rules for voice calls.
Under the new rules, the Enforcement Bureau will issue a notice that identifies the number(s) originating the illegal texts and provides the Enforcement Bureau’s basis for determining that the texts are illegal. The Enforcement Bureau will also give notified providers a “reasonable time frame” to comply. Notified providers must then “promptly investigate” and begin blocking all relevant texts within the time allotted.
Finally, accompanying the Order is a Second Further Notice of Proposed Rulemaking, which demonstrates the FCC’s intent to clamp down further on illegal texts. The Further Notice seeks comment on additional text blocking requirements, including extending requirements to originating providers and mandating the use of “reasonable analytics” to block texts that are highly likely to be illegal. The FCC is also seeking public comment on protections for senders who believe their texts have been erroneously blocked, implementing a text message authentication scheme to parallel the STIR/SHAKEN protocol, requiring traceback compliance for texts, and restricting email-to-text services.
Targeting and Eliminating Unlawful Text Messages – CG Docket No. 21-402