Topic: NPRMs

More TCPA Calling and Texting Restrictions Proposed by the FCC

At the Federal Communication Commission’s (“FCC”) June 8 Open Meeting, the Commissioners voted to adopt a new Notice of Proposed Rulemaking (“Notice”) designed to clarify and expand upon the ability of consumers to decide what calls or texts subject to the Telephone Consumer Protection Act (“TCPA”) they wish to receive.  The Notice addresses pending but unresolved petitions for declaratory rulings filed by a range of entities seeking clarification of a variety of TCPA policies.  The Notice also highlights the agency’s intention to adopt specific rules codifying stated FCC policies contained in prior orders so that consumer rights are “clear” and easy to understand.  Each of the areas addressed by the Notice could affect the compliance programs of callers and texters, and the Notice thus represents an opportunity to inform the FCC of practical consequences of its proposals before it acts to adopt new rules.

Revocation of Consent in “Any Reasonable Way”

In its 2015 Declaratory Ruling, the FCC stated that consumers who had provided prior express consent to receive autodialed or pre-recorded voice calls are free to revoke that consent through any reasonable means of notification to the calling or texting party.  The Notice proposes to formally adopt a rule incorporating that flexibility and prohibiting calling or texting parties from designating any exclusive means to revoke consent.  The proposed rule states that reasonable revocation methods “typically” include text messages, voicemail or email to any phone number or email address where the consumer “can reasonably expect” to reach the caller.  The Notice calls out the use of “STOP” as a widely recognized means of revoking consent and proposes that the FCC employ a presumption that such a message, if sent, it is to be treated as a revocation of consent message.  If text initiators do not allow or enable a reply to text function, then the FCC proposes that that entity be required to provide clear and conspicuous disclosure on each text as to how to revoke consent.

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The FCC Has Illegal and Scam Robotexting in its Sights, Proposed New Text Blocking Rules

For those regularly monitoring the FCC’s various TCPA dockets, you now have a new docket to follow: CG Docket No. 21-402. The FCC announced on September 27, 2022 that all Commissioners had voted to commence a new robotext proceeding, releasing the text of a Notice of Proposed Rulemaking (Notice) the same day. Comments and reply comments will be due 30 and 45 days respectively from the time a summary of the Notice is published in the Federal Register, which has not yet occurred as of the publication of this post.

In the Notice, the FCC states that it is receiving an increasing number of consumer complaints about fraudulent or scam texts and proposes to require wireless carriers to block “illegal” or “highly likely to be illegal” text messages at the network level “that purport to be from invalid, unallocated, or unused numbers, and numbers on a Do-Not-Originate (DNO) list.” If adopted, this blocking standard would be similar to the network-based call blocking that the FCC authorized in 2017 and has continued to refine in subsequent proceedings.

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FCC Acts to Curb Foreign-Originated Illegal Robocalls, Imposes Several New Requirements on Gateway Providers

Recently, on May 20, 2022, the Federal Communications Commission (“FCC”) issued a Report and Order (“Order”), as well as a Further Notice of Proposed Rulemaking (all available here), with a plain objective:  to “take further steps to stem the tide of foreign-originated illegal robocalls and seek comment on additional ways to address all such calls.”  Order1.  As stated by the FCC, “reducing illegal robocalls that originate abroad is one of the most vexing challenges we face in tackling the problem of illegal robocalls.”  Id.  The Order was adopted by a unanimous, 4-0 vote by the FCC after it had received comments over the last nine months on various topics, including whether so-called “gateway providers” should be required to authenticate caller identification information and implement other efforts to reduce the number of illegal prerecorded and/or artificial voice “robocalls” originating overseas.

A “gateway provider” is a U.S.-based provider that acts as an intermediary for an international call by receiving a call directly from a foreign provider before transmitting that call downstream to other U.S.-based providers for termination.  Order ¶ 25.  This definition is not static but rather one that applies on a call-by-call basis, i.e., a provider is a gateway provider—and subject to the FCC’s new Order—only for those calls in which it acts as a gateway provider.  Id. ¶ 28.  Per the FCC, commenters “overwhelmingly” supported the imposition of additional requirements on gateway providers in order to “stop the flood of foreign-originated illegal calls.”  Id. ¶ 21.

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FCC Proposed Rulemaking Presents an Opportunity to Reshape Some Existing TCPA Exemptions

Over the years, one of the biggest challenges many businesses face when assessing TCPA risks posed by a new calling or texting campaign has been determining whether the proposed use case can defensibly rely on one of the exemptions adopted by the Federal Communications Commission (FCC). That is because the FCC has repeatedly cautioned that any exemptions it adopts apply only to the specific set of facts considered by the agency. Sometimes the jigsaw puzzle pieces align, but other times they do not perfectly fit together, making exemptions less useful than they might otherwise be.

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Comment Cycle Begins for the FCC’s Third Further Notice of Proposed Rulemaking on “Call Blocking by Default” Regime And SHAKEN/STIR Implementation Deadline

On June 24, 2019, the FCC’s adopted Declaratory Ruling and Third Further Notice of Proposed Rulemaking (“Third FNPRM”) was published in the Federal Register, triggering the commenting period deadlines. We previously discussed in detail the various components of the Third FNPRM here and here. Comments on this Third FNPRM are due by Wednesday, July 24, 2019, and reply comments are due by Friday, August 23, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.

Do B2C Telephone Communications Now Need to Win the Popularity Contest to Not Be Preemptively Blocked?

Businesses may dial large volumes of numbers daily for a variety of legitimate purposes. These calls now appear to have become swept up and conflated with illegal robocalls, with a number of undesirable consequences. Certainly policy makers at the FCC, in reacting to understandable concerns about fraudulent and illegal calling, have been introducing more and more opportunities for voice service and app providers to apply non-transparent, subjective standards to block calls, and further muddy the water for business callers. Continue reading “Do B2C Telephone Communications Now Need to Win the Popularity Contest to Not Be Preemptively Blocked?”

Comment Cycle Begins for the FCC’s Proposed Amendment to Truth in Caller ID Rules

Yesterday, the FCC’s adopted Proposed Rulemaking (“NPRM”) to amend its Truth in Caller ID Rules was published in the Federal Register, triggering the commenting period deadlines. We previously compared the adopted NPRM with the draft document here and provided an overview of the proposed key provisions here. Comments on this NPRM are due by Wednesday, April 3, 2019, and reply comments are due by Friday, May 3, 2019. Commenters should follow the filing instructions provided in paragraph 40 of the NPRM. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.

FCC Adopted Proposed Amendment to Truth in Caller ID Rules

Since Chairman Ajit Pai took office, combatting illegal robocalls and malicious spoofing has become the FCC’s top consumer protection priority. In anticipation of yesterday’s Open Commission Meeting, Chairman Pai issued another press release on Wednesday, calling for “a robust caller authentication system to combat illegal caller ID spoofing” and criticizing carriers that lacked commitment to deploy the SHAKEN/STIR framework by the end of 2019. Between Chairman Pai’s 2018 demands that the FCC make real progress in call authentication and yesterday’s Open Meeting to vote on its draft Proposed Rulemaking to amend existing Truth in Caller ID Rules, Chairman Pai solicited details from several large telecommunications carriers about their caller ID authentication plans. These carriers’ submissions are available here.
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FCC Proposes to Amend Truth in Caller ID Rules at its January Open Meeting

The FCC has announced its intention to take another step in combatting fraudulent robocalls by amending its Truth in Caller ID rules to extend to communications originating from outside the United States, as well as expanding the scope of covered communications services to include text messages and additional voice services. Specifically, in anticipation of its scheduled January 30, 2019 Open Meeting, the FCC, just prior to its shutdown on January 3, 2019, released a draft Notice of Proposed Rulemaking, which would implement new FCC rules and definitions designed to deter malicious caller identification spoofing. The proposed rules are intended to update current FCC Truth in Caller ID rules to reflect Congress’ recent enactment of Section 503 of the RAY BAUM’S Act that modified section 227(e) of the Communications Act as well as to “expand and clarify the prohibition on misleading or inaccurate caller identification information.” Continue reading “FCC Proposes to Amend Truth in Caller ID Rules at its January Open Meeting”