2023-07405. Targeting and Eliminating Unlawful Text Messages

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission) requires mobile wireless providers to block texts, at the network level, on a reasonable Do-Not-Originate (DNO) 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. In addition, the Commission requires mobile wireless providers and other entities to maintain a point of contact for texters to report erroneously blocked texts.

DATES:

Effective May 11, 2023.

FOR FURTHER INFORMATION CONTACT:

Mika Savir of the Consumer Policy Division, Consumer and Governmental Affairs Bureau, at [e-mail] or (202) 418–0384.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order, FCC 23–21, CG Docket No. 21–402, adopted on March 16, 2023, and released on March 17, 2023. The full text of this document is available online at https://docs.fcc.gov/​public/​attachments/​FCC-23-21A1.pdf. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART), send an email to [e-mail] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418–0530.

The compliance date of these rules is six months after Office of Management and Budget (OMB) approval of the rules and subsequent notice of publication in the Federal Register .

Congressional Review Act

The Commission sent a copy of document FCC 23–21 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Final Paperwork Reduction Act of 1995 Analysis

This document may contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. This document will be submitted to OMB for review under section 3507(d) of the PRA. OMB, the general public, and other federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding.

Synopsis

1. In the Report and Order, the Commission adopts a proposal in the Notice of Proposed Rulemaking (NPRM), published at 87 FR 61271, on October 11, 2022; specifically to require mobile wireless providers to block texts, at the network level, on a reasonable Do-Not-Originate (DNO) 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. These are texts that no reasonable consumer would wish to receive because they are highly likely to be illegal. In addition, the Commission is requiring mobile wireless providers and other entities to maintain a point of contact for texters to report erroneously blocked texts.

2. These rules apply to text messaging originating from NANP numbers that use the wireless networks, e.g., Short Message Service (SMS) and Multimedia Messaging Service (MMS).

3. The Commission recognizes that providers and others have adopted measures to protect consumers from illegal text messages, such as upfront vetting for bulk message senders, the CTIA Messaging Principles and Best Practices, and providers' own requirements and guidance. The Commission's actions complement those efforts while ensuring customers of all providers get a baseline of protection. Industry efforts to date are important to protect consumers, the increases in consumer complaints and consumer harm from robotext messages convinces the Commission to take additional measures to protect consumers.

4. The Commission adopts the proposal to require mobile wireless providers to block text messages at the network level ( i.e., without requiring consumer opt in or opt out). The rule adopted requires that they block texts purporting to be from numbers on a reasonable DNO list. No reasonable consumer would wish to receive text messages that spoof a number that is not in operation or purports to be from a well-known, trusted organization that does not send text messages and thus is highly likely to be a scam. The requirement to block texts that purport to be from numbers on a reasonable DNO list does not include text messages from valid short codes.

5. The Commission finds it appropriate to adopt a mandatory rule here for blocking texts that purport to be from numbers on a reasonable DNO list for several reasons: (i) the texts from such numbers are likely to be illegal; (ii) illegal text messages can have links to malware, a problem that voice calls do not have; (iii) the volume of unwanted and illegal text messages is increasing, particularly since the Commission adopted measures to block such voice calls; (iv) 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 (v) this approach provides benefits to consumers while imposing minimal burden on mobile wireless providers.

6. The Commission finds that the rule adopted today will impose a minimal burden on mobile wireless providers while providing a necessary baseline level of protection to consumers. Many mobile wireless providers already employ measures to block illegal text messages, including DNO-based blocking. For providers that already employ such measures, the rule imposes no additional burden. For the limited number of providers that do not currently employ such measures, the rule will provide consumers with a baseline level of protection against illegal and fraudulent text messages. The rule adopted today strikes the best balance between protecting consumers from illegal text messages while imposing minimal burden on mobile wireless providers. These actions are reasonable responses to the harm and specifically focused to mitigate the ongoing damages consumers face from illegal, fraudulent text messages that mobile wireless providers transmit today.

7. The requirement for mandatory blocking of texts that purport to be from numbers on a reasonable DNO list is straightforward and does not define “highly likely to be illegal” or ask mobile wireless providers to determine whether particular messages are “highly likely to be illegal.” The Commission disagrees that regulation of criteria used by mobile wireless providers to determine which text messages are “highly likely to be illegal” would be inconsistent with the classification of wireless messaging as Title I information service. The rule adopted does not affect providers' ability to continue to employ other methods to protect consumers. Mobile wireless providers are now required to block texts that purport to be from numbers on a reasonable DNO list; mobile wireless providers remain free to continue the measures they are currently using to protect consumers from illegal text messages.

8. Further, the Commission is requiring mobile wireless providers and others to maintain a point of contact for senders to report erroneously blocked texts. A point of contact will enable texters to contact mobile wireless providers to swiftly resolve complaints of unwarranted blocking of text messages.

9. The Commission declines to adopt rules for several of the other topics raised in the Notice of Proposed Rulemaking. The Commission declines to require text blocking notifications because the record indicates that service providers are already providing adequate notice when they block texts. The Commission declines to enact rules regarding safeguarding against blocking of texts to 911 and other emergency numbers based on the record. The Commission also declines to adopt caller ID authentication requirements for text messages due to uncertainty about the current feasibility of such a requirement.

10. With respect to legal authority to adopt the rules, the Commission finds that it has authority to require mobile wireless providers to block certain text messages originating from NANP numbers. First, under the Telephone Consumers Protection Act (TCPA), the Commission has authority over the unsolicited text messages that fall within the scope of the Report and Order. The Commission has found that, for the purposes of the TCPA, texts are included in the term “call.” Because the Commission has authority to regulate certain text messages under the TCPA, particularly regarding messages sent using an autodialer and without the consent of the called party, the Commission has the legal authority for the adopted rule.

11. The Commission finds that it has authority under the Truth in Caller ID Act to adopt a blocking requirement. That Truth in Caller ID Act makes unlawful the spoofing of caller ID information “in connection with any voice service or text messaging service . . . with the intent to defraud, cause harm, or wrongfully obtain anything of value.” The Commission finds that adopting this requirement is necessary to block calls that unlawfully spoof numbers on reasonable DNO lists, and thus is authorized by the Truth in Caller ID Act.

12. Finally, the Commission has authority under Title III of the Communications Act to adopt these measures. As courts have recognized, Title III “endow[s] the Commission with `expansive powers' and a `comprehensive mandate to “encourage the larger and more effective use of radio in the public interest.” ' Section 303 of the Communications Act grants the Commission authority to establish operational obligations for licensees that further the goals and requirements of the Communications Act if such obligations are necessary for the “public convenience, interest, or necessity” and are not inconsistent with other provisions of law. In particular, § 303(b) of the Communications Act authorizes the Commission to “[p]rescribe the nature of the service to be rendered by each class of licensed stations and each station within each class,” and that is what our mandatory blocking rule addresses here. In addition, §§ 307 and 316 of the Communications Act allow the Commission to authorize the issuance of licenses or adopt new conditions on existing licenses if such actions will promote public interest, convenience, and necessity. The Commission finds the requirements adopted for mobile wireless providers are necessary to protect the public from unwanted and illegal text messages and that such a requirement is in the public interest.

Final Regulatory Flexibility Analysis

13. As required by the Regulatory Flexibility Act of 1980, as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking ( NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments in response to the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

14. Need for, and Objectives of, the Report and Order. The Order requires mobile wireless providers to block texts, at the network level, that purport to be from numbers on a reasonable Do-Not-Originate (DNO) list. Such texts are highly likely to be illegal and for that reason the Commission is adopting a requirement to block at the network level. The Order also requires providers and other entities to maintain a point of contact for texters to report erroneously blocked texts.

15. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA.

16. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

17. Description and Estimate of the Number of Small Entities to Which the 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.

18. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, 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 Small Business Administration's (SBA) 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 32.5 million businesses.

19. 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 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.

20. 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, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

21. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA 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 in this industry that operated for the entire year. Of that 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.

22. 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.

23. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements for Small Entities. This Order may include new or modified information collection requirements. The Order adopts a requirement that mobile wireless providers block texts purporting to be from NANP numbers on a reasonable DNO list, which include numbers that purport to be from invalid, unallocated, or unused numbers, and NANP numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked. In addition, the Order requires providers to establish a point of contact for senders to resolve issues of erroneously blocked texts. To the extent the new requirements constitute an information collection, such collection will not present a substantial burden for small business concerns with fewer than 25 employees; any such burdens would be far outweighed by the benefits to consumers from blocking text messages that are highly likely to be illegal.

24. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant 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 and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”

25. The Order requires mobile wireless providers to block texts, at the network level, that purport to be from numbers on a reasonable Do-Not-Originate list. Such texts are highly likely to be illegal and for that reason the Commission is adopting a requirement to block at the network level. The Commission recognizes that mobile wireless providers, including small entities, already take measures to block illegal text messages from reaching their customers' phones and this requirement should not be burdensome. The Order also requires providers and other entities to establish a point of contact for texters to report erroneously blocked texts. Because many of these providers and entities maintain a point of contact for call blocking purposes, and because the Order states that providers and entities may use the same point of contact for the text blocking requirement, the requirement should not be burdensome.

26. Report to Congress. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. The Order and FRFA (or summaries thereof) will also be published in the Federal Register .

List of Subjects in 47 CFR Part 64

• Communications common carriers
• Telecommunications
• Telephone

Federal Communications Commission.

Marlene Dortch,

Secretary, Office of the Secretary.

Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 64 as follows:

PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

1. The authority citation for 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, 620, 716, 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

2. Amend § 64.1200 by adding paragraphs (p), (q), and (r) to read as follows:

§ 64.1200

Delivery restrictions.

* * * * *

(p) A mobile wireless provider must block a text message purporting to originate from a North American Numbering Plan number on a reasonable do-not-originate list. A list so limited in scope that it leaves out obvious North American Numbering Plan numbers that could be included with little effort may be deemed unreasonable. The do-not-originate list may include only:

(1) North American Numbering Plan Numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked;

(2) North American Numbering Plan numbers that are not valid;

(3) Valid North American Numbering Plan numbers that are not allocated to a provider by the North American Numbering Plan Administrator; and

(4) Valid North American Numbering Plan numbers that are allocated to a provider by the North American Numbering Plan Administrator, but are unused, so long as the provider blocking the message is the allocatee of the number and confirms that the number is unused or has obtained verification from the allocatee that the number is unused at the time of blocking.

(q) Paragraph (p) of this section may contain an information-collection and/or recordkeeping requirement. Compliance with paragraph (p) will not be required until this paragraph (q) is removed or contains a compliance date, which will not occur until after the Office of Management and Budget completes review of such requirements pursuant to the Paperwork Reduction Act or until after the Consumer and Governmental Affairs Bureau determines that such review is not required.

(r) A mobile wireless provider must provide a point of contact or ensure its aggregator partners or blocking contractors that block text messages on its network provide a point of contact to resolve complaints about erroneous blocking from message senders that can document that their messages have been blocked. Such point of contact may be the same point of contact for voice call blocking error complaints.