FCC adopts rules for blocking unlawful text messages

The FCC adopted a limited set of rules from the more expansive list they initially proposed for blocking unlawful text messages. The Commission also asked for further comment on potential future rules. Let’s have a look.

The adopted rules are listed in a Report and Order and Further Notice of Proposed Rulemaking on CG Dockets 21-402 (Targeting and Eliminating Unlawful Text Messages) and 02-278 (Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991).

Report and Order

The Order requires mobile wireless providers, i.e., providers of SMS and MMS text messaging, to block text messages that purport to be from:

• NANP numbers on a reasonable DNO list
• Invalid, unallocated, or unused numbers
• NANP numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked.

The Order also requires that mobile wireless providers ensure that senders have access to points of contact to report erroneously blocked texts.

Missed the cut

If you’ve been following these proposed rules, you may recall that they originally included a proposal to require mobile wireless providers to use STIR/SHAKEN to perform call authentication on text messages.

The Commission received almost 60 comments and reply comments. A recurring theme was that messaging infrastructure is different from voice calls infrastructure. In voice calls, it is possible to spoof the calling number—in text messaging, it is not. There can be no spoofing of the originating number.

What some complaints call “spoofing” in robotexts is really impersonation of the sender’s identity. The message content makes the recipient believe that the message came from someone else. The sending number, however, was not spoofed.

Therefore, several commenters argued that STIR/SHAKEN call authentication is unnecessary for preventing unlawful robotexts.

Are these rules necessary?

If spoofing is not possible, then why invoke a rule to block text messages from DNO, invalid, unallocated, or unused numbers?

The Commission seemed to interpret comments that spoofing doesn’t happen in text messaging to be a result of individual provider efforts to employ spoofing prevention measures such as DNO blocking. The new rules mandate the use of these methods by all mobile wireless providers. They did not interpret limited spoofing of text messages to mean that spoofing is impossible.

The Commission explained that this Order is very narrow in scope. They believe it will impose a minimal burden on mobile wireless providers. Implementation should be relatively easy, inexpensive, and unlikely to result in excessive blocking.

The Commission also noted comments from Fifty-One state attorneys general and the Senate Committee on Commerce, Science, and Transportation, which both advocated for robotext blocking rules. Their statements reflect a belief that spoofing is possible. However, it is not clear whether either the state AGs or the Senate committee members were aware of the difference between spoofing and impersonation.

Finally, the Commission cited comments from the ABA Joint Commenters, who wrote that their “members report that bad actors illegally spoof phone numbers belonging to legitimate businesses when sending text messages—i.e., the bad actor sends a text message from a number that appears to belong to the legitimate business or sends a text message from the bad actor’s own number, making it appear that it is from a legitimate business, with the intent to defraud the recipient.” This filing clearly stated that the problem is not just impersonation—spoofing is also taking place.

Together, these factors led the Commission to mandate limited blocking of robotexts.

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