04/17/2023 1:25 P.M.
5 minute read
The Federal Communications Commission is advancing proposed regulations on text message blocking.
A comment period on requirements for mobile wireless providers is open now, and a rule for providers to have a single point of contact on blocked texts, among other items, will take effect in May with a compliance date to be determined.
Comments on Text Message Blocking
The FCC adopted a report and order and further notice of proposed rulemaking (FNPR) to target “scam text messages” through mitigation by wireless carriers at its March 16 meeting, ACA International previously reported.
The mitigation includes requiring wireless carriers to block text messages that appear to be from invalid, unallocated or unused numbers that are unlikely to send text messages, according to the FCC.
“It also includes numbers that the subscriber to the number has self-identified as never sending text messages, and numbers that government agencies and other well-known entities identify as not used for texting,” the FCC reports.
The FCC’s report and order and FNPR, “Targeting and Eliminating Unlawful Text Messages and Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,” includes the opportunity to comment on:
According to a client alert from Brownstein Hyatt Farber Schreck, “The blocking rule applies to traditional text messages, not to over-the-top messaging services like WhatsApp, Facebook Messenger or WeChat. It also does not apply to texts using short codes, which are five- or six-digit numbers often used in campaigns. The rule is intended to complement voluntary blocking efforts undertaken by the wireless industry pursuant to their best practices and codes of conduct.”
With regard to banning the practice of obtaining a single consumer consent, the proposal has two restrictions, according to Brownstein.
The FCC also seeks comment on completely banning the use of intermediaries, such as lead generators to secure consent, rather mandating that the product’s seller be responsible for consent permissions.
“This change could severely impact the traditional lead generation industry,” according to Brownstein.
Comments on the FNPR are due May 8, 2023, and reply comments are due June 6, 2023. Instructions to file comments are available in the FCC’s Federal Register notice.
Blocking Do-Not-Originate Numbers
In a separate action, the FCC is requiring mobile wireless providers to block texts on a Do Not Originate list, “which include numbers that purport to be from invalid, unallocated, or unused North American Numbering Plan (NANP) numbers, and NANP numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked,” according to a Federal Register notice.
This rule would also require mobile wireless providers and other entities to keep a point of contact for businesses sending text messages to report erroneously blocked texts.
It applies to text messaging from NANP numbers that use wireless networks, such as “Short Message Service (SMS) and Multimedia Messaging Service (MMS),” according to the FCC.
The FCC also reports that adopting a mandatory rule for blocking texts from numbers on a Do Not Originate list is appropriate because the messages from the numbers are likely to be illegal, contain links to malware, and unwanted and illegal text messages are on the rise, particularly since the FCC has implemented rules to block illegal voice calls.
“Consumers expect to receive texts from unfamiliar numbers, e.g., as appointment reminders and for double factor authentication, and therefore are more likely to open such messages even when they do not recognize the sending party; and this approach provides benefits to consumers while imposing minimal burden on mobile wireless providers,” according to the FCC.
While in effect beginning May 11, compliance will be required six months after the Office of Management and Budget reviews and approves the rule.
ACA Advocacy
ACA, the American Financial Services Association, Credit Union National Association, and the National Association of Federally-Insured Credit Unions recently submitted a letter (PDF) before the March 16 meeting with proposed additions to FCC’s report and order on text message blocking, including the point of contact for blocked text messages that is addressed in this new rule.
The joint industry trade groups appreciate the FCC’s quick actions to help curb illegal robotexts and “support regulation of texts sent from invalid, unallocated or unused numbers and those on Do Not Originate lists and are pleased to see the Commission take action to block such texts,” according to the recent letter.
However, there is more work to be done in the rule.
“We are disappointed the FCC’s order is not narrowly tailored to bad actors, and does not adopt standards to ensure blocking is done in a competitively-neutral and content-neutral manner,” said Leah Dempsey, shareholder at Brownstein Hyatt Farber Schreck and ACA’s lobbyist who is leading the advocacy efforts with the FCC on behalf ACA. “However, we are pleased the FCC is seeking information about how it can, ‘ensure non-discrimination policies in adopting text authentication measures,’ and plan to continue to advocate that needed informational texts from the financial services industry are given proper guardrails from the FCC and distinguished from ‘robotexts.’”
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