Comments on FCC’s proposed robotext rules

The FCC received a huge number of comments on their proposed robotext rules. We’ve summarized the comments and recurring themes. Here’s an overview.

The proposed rules are available for review in the Further Notice of Proposed Rulemaking for Targeting and Eliminating Unlawful Text Messages, which was released on March 17, 2023.

Recurring themes

• We would segment the filers into the following groups:
  • Members of, and advocates for, the lead generation industry
  • Enterprise associations advocating for businesses that use text messaging
  • Consumer advocates
  • Advocates for wireless carriers
  • Individual consumers (some filings seem to have come from actual consumers, while others might be an industry stakeholder posing as a consumer).
• There are three broad approaches advocated in these comments:
  1. Light touch on new restrictions: wireless carrier advocates
  2. Middle of the road. Put some controls around text marketing to prevent abuses while allowing a better-behaved lead generation industry to remain viable: lead generation advocates, enterprises
  3. Strict rules to sharply limit robotexts: consumer advocates, most consumers
• Several filers objected to the logically and topically related standard for extending consent as too vague. Some urged limits on the number of sellers who could get the lead and a time limit on consent.
• There was little support for call authentication.

Comments

There were 361 pages of reply comments in 46 submissions.

With so many comments, we kept our summaries very brief. If you’d like more information, you can click the filer’s name above each summary to read that organization’s filing.

American Association of Ancillary Benefits

• The “logically and topically associated” term is too vague. Instead, the Commission should set a maximum number of callers and calls per day.
• Supports the “clearly and conspicuously exposed” list of other entities, but listing entities on one web page doesn’t consider all the ways consent is gathered, such as modal forms, within apps, and on paper.

American Association for Public Opinion Research (“AAPOR”)

• Texts sent for noncommercial research should not be precluded by the Do-Not-Call Registry.
• Create a whitelist of legitimate research organizations and prevent their texts from being inadvertently blocked.

Assurance IQ, LLC

• Support limiting consent to relevant partners.
• Rules should allow one-click-away disclosure of multiple entities, rather than on the webpage.

Balboa Digital

• Supports the R.E.A.C.H. proposed standards (member of REACH board).

Campaign Verify

• Sells a message vetting service used for political messages and proposes extending that to commercial texts.

Competitive Carriers Association

• Give carriers time to implement compliance methods for current rules before mandating new rules.
• Don’t require terminating carriers to investigate and block texts.
• Allow time for industry and standards work on text blocking and authentication.
• Supports Do-Not-Call protection for texts.

Concerned Citizen-anonymous

• Many small businesses rely on the lead generation industry to generate leads.
• Consent should be extended to entities relevant to the offer, not the website.

Connection Holdings LLC

• Is a lead generator and is concerned about losing business.
• Concerned that the rules would limit other entities too strictly and put marketing companies out of business.

Consumer Consent Council

• Supports comments of PACE.
• The Commission should allow industry self-regulation to either augment or substitute for a single national regulation.

CTIA

• Should not require terminating providers to investigate and block texts.
• Caller ID authentication would not be appropriate for text messaging.
• Supports enforcement against bad actors.

DRIPS

• Supports the REACH proposed standards.
• Multiple entities should be clearly listed on the webpage or by hyperlink.
• Consent should be narrowed to entities relevant to the webpage, not the website.
• Match rates (number of entities included in consent) should be limited.
• Consent should expire.
• The Public Knowledge proposal, 1:1 consent, should be rejected.

Enterprise Communications Advocacy Coalition

• Text blocking should be extended beyond terminating providers.
• Blocking “substantially similar” texts should be clarified to mean sent by the same or an affiliated sender and closely matches traffic to be blocked.
• Number spoofing is not a problem with texts, as it is with voice calls. In texts, bad actors often impersonate a sender in the content of the message.

Hayden Haskins

• Supports limiting the transfer of consent.

High Tech Forum

• Critical of Report and Order on Targeting and Eliminating Unlawful Text Messages.
• Commission should educate consumers about reporting and stopping spam texts.
• Commission should raise its awareness of the unique properties of spam texts versus robocalls and spam emails.

INCOMPAS

• Before requiring providers to block texts, the Commission must determine that the traffic is illegal.
• The Commission should not mandate text authentication until a standard is finalized and released.
• Clarify Do-Not-Call blocking to avoid problems. For example, a number on the DNC list would not receive two-factor authentication messages.
• It’s difficult for downstream providers to know if text messages are TCPA compliant. This makes closing the lead loophole difficult.

Insurance Marketing Coalition

• Supports clarifying “prior express written consent” so consumers have transparency about calls they may agree to receive.
• Concerned with vague or arbitrary proposals involving entity lists, webpage disclosure and hyperlinks that won’t always align with technology usage.
• “Logically and topically associated” is a vague standard.
• Opposed to 1:1 consent mandate.

James Connors

• Supports Public Knowledge proposal to mandate 1:1 consent.
• Attached screenshot examples showing large numbers of marketing partners.

Joe Shields

• Relates experiences with robotexts, calling out several lead generators and telephone companies.
• Carriers should be allowed to block all texts not on a customer’s white list.

Kelly Subbaiah

• Supports 1:1 consent rule unless the subscriber would reasonably expect marketing partners to be included.
• Do not need new rules for Do-Not-Call treatment. Instead, need a declaratory ruling to clarify.

LendingTree, LLC

• Commission should modify its proposal to allow comparison-shopping providers to extend consent to partners matched by the service.
• Opposed to the 1:1 consent proposal.
• Marketing partners list on a webpage is impractical. The comparison-shopping site needs to do the matching first. It should not have to overwhelm the consumer with a list of potential partners who have not been matched. Instead, comparison shopping sites should be allowed to disclose partners after the match.

Mark W. Dobronski

• The Commission should clarify that texts are calls and that Do-Not-Call rules apply.
• Supports the proposed 1:1 consent rule.

Mark Rubenstein

• Upset about illegal robocalls and spoofing.

Messaging, Malware and Mobile Anti-Abuse Working Group (M3AAWG)

• Supports the rule that consent only extends to parties listed.
• Do-Not-Call should apply to texts.
• Commission should not require terminating providers to block “substantially similar” traffic. It poses a risk of over- or under-blocking.
• Spoofing is not an issue with texts.

National Association of Mutual Insurance

• The proposed 1:1 consent rule would undermine comparison shopping and harm consumers.

National Consumer Law Center, Electronic Privacy Information Center, Public Knowledge, Public Citizen, National Association of State Utility Consumer Advocates, Public Citizen

• Commission should close the lead generator loophole.
• Existing rules already require 1:1 consent; these rules aren’t being followed.
• The proposed rule extending consent to “substantially similar” partners would reduce consumer protection.
• The Commission should clarify that the No-Not-Call rule applies to texts.
• The Commission should issue guidance on using the E-Sign Act, which allows an electronic signature to replace a written signature. This is relevant to the FCC’s consent rules.

NetNumber, Inc.

• Ordering terminating providers to block texts would be of limited benefit. Enforcement action takes too long.
• Instead of slow, after-the-fact investigation and blocking, the Commission should encourage industry to develop real-time analytics and blocking.
• Additional authentication solutions are not necessary. Spoofing is not common in text messaging.

Online Lenders Alliance

• Proposed rules would harm consumers. For example, consumers shopping for credit would be limited by 1:1 consent. This could limit their access to credit or drive up the cost of credit.
• The proposed rule conflicts with FTC guidance on the use of hyperlinks.

PACE (Professional Associations for Customer Engagement)

• Non-compliant texting is mostly from scofflaw bad actors who don’t follow the rules anyway. They should be dealt with using existing tools such as traceback, termination and forfeiture.
• “Logically and topically associated” is vague and ambiguous. Instead, the Commission should mandate that consent agreements specify a maximum number of sellers and calls per day the consumer may receive from each seller.
• Opposed to 1:1 consent, which would limit the site owner’s ability to find a seller who can fulfill the consumer’s request.
• Rules should allow hyperlinks to partners rather than listing them all on the webpage, which could overwhelm the consumer, especially before matching and availability are done.

QuinStreet, Inc.

• Consumers would benefit from extending consent to multiple entities logically and topically associated with the website.
• Requiring sellers to be listed on the consent form without hyperlinks would limit consumer choice and harm businesses.
• Opposed to the 1:1 consent proposal.

Rate Simple Mortgage

• 1:1 consent requirement would harm his business and the consumers they serve.
• Lists other industries, and consumers that buy from them, that would be harmed.

Receivables Management Association International

• Customers rely on and often prefer to do business by text.
• The Do-Not-Originate rule should not apply to communications with existing customers.
• Redress should be available for improper text blocking.

Responsible Enterprises Against Consumer Harassment (R.E.A.C.H.)

• REACH has developed a proposed standard for lead generation rules and included the standards as an appendix to their comments.
• The REACH standards aim to find a middle ground to prevent abusive behavior while allowing legitimate communication that adds value to consumers and businesses.
• The Public Knowledge 1:1 consent proposal would destroy the lead generation industry and harm consumers and businesses. It should be rejected.
• The Commission should adopt the REACH standards and grant a safe harbor to those using it.

Retail Industry Leaders Association

• Supports the proposed rules for:
  • Do-Not-Originate blocking
  • Single point of contact for redress of erroneous blocking
  • Mandatory blocking when notified
  • Banning the practice of single consumer consent outside the logical and topical scope of the original consent.
• Opposed to extending Do-Not-Call restrictions to text messages.

Richard Keller

• Agrees with the proposals by the National Consumer Law Center and others.

Richard Presley

• Supports the Public Knowledge proposed rule for 1:1 consent.

SBBnet

• The proposed 1:1 consent rule would have disastrous economic impacts on consumers and businesses. It would prevent comparison shopping sites from operating.
• Hyperlinks to partner listings should be allowed, and the providers should be logically and topically related.

Small Business—anonymous

• Clarify that text messages are subject to phone call rules.
• Increase penalties.
• Improve traceback.

Solar Energy Industries Association

• Lead generators, comparison shopping sites, and dealer networks benefit consumers and businesses.
• Supports a ban on extending consent to unrelated calls and texts.
• Opposed to 1:1 consent proposed rule.
• Opposed to listing all potential callers, which might overwhelm consumers and be of little value.
• Instead, require clear disclosure of the number of callers, types of callers, and links to callers.

SolarReviews.com

• Allow consumers to restrict the sale of their contact details to a maximum number of service providers.
• Restrict lead sales to service providers only.
• Suggested other restrictions on the use of multiple calling numbers and third-party sharing.

Sydney Williamson

• Supports 1:1 consent proposed rule.

UnitedHealthcare

• Overly strict limits on extended consent could harm consumers.
• Licensed agents connect consumers with providers. Consent rules should allow this.
• Agree with FCC’s suggestion that consent should be limited to the subject matter requested. However, “logically and topically related” is too vague.
• If a numerical limit on extended consent is too low, consumers may miss out on important options or choices.

USTelecom - The Broadband Association

• Commission should not adopt new language on consent. Existing rules require consent be obtained on behalf of one singular seller. New language is not necessary.
• The proposed language would introduce new ambiguity and permit practices that may not be allowed under the existing rules.
• The Commission should issue a declaration to confirm its existing rules rather than through a rule change.

Voice on the Net Coalition

• Text-blocking rules must ensure competitive neutrality. Mandatory blocking should be done on a competitively and technologically neutral basis.
• Commission should add a traceback component to its text-blocking proposal.
• Authentication, if done, should be competitively neutral.
• Should not impose strict liability on providers for customer compliance failures on new lead generation rules.

William J. Earl

• Supports proposed rules.

William J Powell

• Upset over robocalls and spoofed numbers.

ZipDX LLC

• Spoofing is very rare in texts.
• Email-to-text gateways make it easy to send scam texts.
• Should remove the “residential” requirement for Do-Not-Call. It’s difficult to tell whether a number is residential or business. Work-from-home has further blurred the lines. Do-Not-Call should apply to the number.
• The consent process is defective.

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