FCC publishes draft new rules for robotexting

November 29, 2023

The FCC published a draft order on rules to eliminate unlawful text messages. Let’s have a look.

The proposed rules include the following provisions:

Close the lead generator loophole by requiring one-to-one consent.
Codify National Do-Not-Call Registry protection to text messages.
Encourage providers to make email-to-text an opt-in service.
Mandatory blocking of text messages by terminating service providers when notified by the FCC Enforcement Bureau.

The draft report and order states that the Commission will not adopt caller ID authentication requirements for text messages at this time.

The Commission will discuss and vote on these rules at their open Commission meeting on December 13, 2023.

Next, we summarize some of the explanations and context from the draft order.

Close the lead generator loophole

Texters and callers must obtain a consumer’s prior express written consent from a single seller at a time, i.e., one-to-one consent.

Consent must come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller.

Robocalls and robocalls that result from consent obtained on a website must be logically and topically related to that website.

Comparison shopping websites can collect one-to-one consent for multiple sellers by a variety of means, including a checkbox list of sellers for consent or clickthrough links to each seller’s consent page.

Do-Not-Call Registry and text messages

Texters must have a consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the Do-Not-Call Registry.

Some commenters were concerned that this requirement might undermine the use of text messaging for two-factor authentication. The draft order explains that such providers can simply avoid including solicitation or marketing messages in such texts.

Email-to-text opt-in

Some commenters mentioned that a significant portion of fraudulent text messages are originated from email-to-text gateways.

The rule encourages providers to make email-to-text an opt-in service. An accompanying Further Notice of Proposed Rulemaking asks whether the Commission should mandate this in a future rule.

Mandatory text blocking

The new rule requires only terminating providers to block text messages when notified by the Enforcement Bureau.

The rule does not require terminating providers to block substantially similar traffic.

More information

Second Report and Order on unlawful text messages.

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