Comments and reply comments on the proposals in the NPRM will be due 30 days and 45 days, respectively, after the Notice is published in the Federal Register. Below we provide key highlights of the item.
Introduction
Americans are increasingly inundated with unwanted and potentially malicious text messages. In 2021 alone, the Commission received 15,300 consumer complaints, with the number of complaints in 2022 on pace to reach an all-time high. Complaints in 2020 were up by 146% over complaints in 2019, pointing to a worsening problem. The FCC notes that many of the same problems facing consumers from unwanted robocalls are also presented by unwanted texts: they invade privacy and are a vehicle for consumer fraud and identity theft. Text messages are uniquely dangerous in that they can include legitimate-looking links designed to fool the recipient into providing personal and financial information. Data indicates that text messages are more likely to be read by the recipient, whereas spam calls are often ignored, and spam emails may get filtered before making it to the recipient’s inbox. In 2020, more than $86 million was stolen by scammers through fraud texting schemes.
Since 2017, the FCC has permitted voice service providers to block, before they ever reach a consumer’s phone, phone calls that are highly likely to be illegal, such as those from invalid, unallocated or unused numbers and numbers on a “Do-Not-Originate” list. Two years later, the FCC permitted voice service providers to apply analytics designed to identify and block unwanted calls, with an opt-out feature for consumers. By 2020, voice service providers were permitted to block calls, without consumers opting in or out, at the network level if the provider applied analytics using caller ID information to identify calls and patterns that are highly likely to be illegal. The FCC subsequently required providers to take steps to stop illegal traffic on their networks. These efforts do not currently apply to text messages, but the FCC in the NPRM tentatively concludes that providers should implement caller ID authentication for text messaging. The Commission recognizes that text blocking comes with the risk of consumers not receiving a wanted, legitimate message and asks if it should require providers that block texts to establish a single point of contact for receiving complaints and verifying the authenticity of texts. If a texter can make a credible claim that its texts should not have been blocked, should the provider be required to cease its blocking of the number in question until circumstances change?
To date, scammers have successfully used several techniques to evade blocking efforts. Devices called “SIM boxes” can be loaded with hundreds of SIM cards that enable the box to send a large volume of texts by appearing to send the texts from individual phones, which allows the messages to bypass a wireless network’s volumetric filters. Another technique, “snowshoe messaging,” spreads messages across a list of phone numbers or short codes to avoid volume limitations. “Account takeovers” allow a scammer to send unwanted messages by gaining unauthorized access to a message sender’s account with a cloud-based provider.
Regulatory Background and Legal Authority
In the Notice, the FCC identifies several regulatory paths it has already taken to reduce or eliminate harmful texts and one that has been effective against robocalls but does not yet extend to text messages:
- The Telephone Consumer Protection Act (TCPA): Under the TCPA, callers are generally required to get consent from a consumer before making certain calls using an autodialer system or an artificial or prerecorded voice. Since 2003, the consent requirement has applied to text messages that originate from an autodialer system. A 2015 declaratory ruling and order applied the consent requirement to internet-to-phone text messages that are routed via email or a wireless carrier’s web portal.
- National Do-Not-Call Registry: Telemarketers are generally prohibited from soliciting by voice call or text message a phone number that is on the registry.
- Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act): The CAN-SPAM Act and the FCC’s Rules implementing the Act apply to commercial email and text messages sent for the purpose of “commercial advertisement or promotion of a commercial product or service.”
- Truth-in-Caller ID Act of 2009: In 2019, the FCC expanded its Truth in Caller ID rules to text messages, prohibiting caller ID spoofing employed to defraud or harm the recipient.
- STIR/SHAKEN: Designed as a framework to authenticate caller ID information at the network level and block spoofed calls, work on STIR/SHAKEN standards for text messages is ongoing. The FCC asks commenters for an update on the efforts to apply STIR/SHAKEN authentication to text messages.
The FCC asks commenters to weigh in on its authority to adopt the measures discussed in the NPRM, namely whether the FCC can apply its Section 251(e) powers to text blocking. That section of the Communications Act gives the Commission exclusive jurisdiction over the portions of the North American Numbering Plan that pertain to the United States and was used by the Commission as authority to implement call blocking. The FCC believes the Truth-in-Caller ID Act provides authority for any actions it takes against caller ID spoofing.
Proposals and Tentative Conclusions
Mandatory Blocking of Illegal Texts
As it has done for phone calls, the FCC proposes requiring mobile wireless providers to block at the network level text messages that appear to come from invalid, unallocated or unused numbers, and numbers on a “Do-Not-Originate” list. The FCC seeks comment on whether such blocking should be required or whether providers should instead have the option to do so. Will blocking such messages make a material impact on the problem? The FCC also wants to know what, if any, methods providers are currently using to block unwanted texts. The Commission notes that its aggressive action stopping unwanted phone calls may have forced scammers to increase their use of text messages.
The Commission also seeks comment on the extent to which spoofing is a problem with regards to text messaging and whether there are additional measures it can take to encourage mobile wireless providers to block texts that appear to come from spoofed numbers.
The Commission tentatively concludes that providers should implement caller ID authentication for text messages, suggesting that industry groups are developing the standards to extend some components of the STIR/SHAKEN framework to text messages. The Commission seeks comments on the status of those industry efforts, what additional work needs to be completed and how long it will take, and, once the standard is completed, what steps must providers take to implement text message authentication, how long might that take and what would be the estimated costs.
Mindful of the potential for abuse or errors, the Commission proposes that all tools used by providers to determine if a text is highly likely to be illegal be applied in a non-discriminatory, competitively- and content-neutral manner. Blocking by a provider could not be based on the identity of other providers in the transmission path and blocking could not be applied to content solely because it is unfavored. The Commission also asks whether it should require each terminating provider that blocks texts to provide a single point of contact, readily available on the terminating provider’s public facing website, for receiving text blocking error complaints and verifying the authenticity of the texts of a texting party that is adversely affected by information provided by caller ID authentication. If so, should it further require that the terminating provider resolve disputes pertaining to caller ID authentication information within a reasonable time and, at a minimum, provide a status update within 24 hours? Further, when a texter makes a credible claim of erroneous blocking and the terminating provider determines that the texts should not have been blocked, or the text delivery decision is not appropriate, the Commission asks whether the terminating provider should be required to promptly cease the text treatment for that number unless circumstances change.
Over the Top (OTT) Messaging
Recognizing that applying any new rules to only SMS and MMS texts may not capture the full scope of the texting landscape, the FCC wants to know how prevalent the use of OTT messaging is, whether more or fewer messages are sent via OTT services, and whether the FCC’s rules current definition of “text message” would apply to OTT messages sent to wireless phone numbers but not to messages sent to other users within the same application. OTT text messaging services use Wi-Fi or cellular data networks to transmit messages, as opposed to SMS/MMS texts that use cellular networks. Apple’s iMessage, Meta’s WhatsApp and Facebook Messenger are examples of popular OTT messaging platforms.
Emergency Communications
Under current Commission rules, certain text message providers are required to deliver emergency text messages to Public Safety Answering Points (PSAP) like 9-1-1 call centers, where such centers are equipped to receive texts. Where a PSAP is unable to receive a 9-1-1 text, the wireless provider must deliver to the sender an automatic bounceback notification alerting the sender that text-to-9-1-1 is unavailable in their area. The FCC seeks comment on whether such automatic notifications might be blocked under its proposed rules.
In certain circumstances, PSAPs are set up to send outbound text messages if a caller hangs up or if a call may have been mistakenly made—is there a risk the FCC’s rules will block such messages? The FCC also asks commenters to weigh in on whether other types of important health and safety messages, like texts about public health, public safety, or to the National Suicide Prevention Lifeline are at risk of being erroneously blocked.
Consumer Education
This NPRM follows an FCC consumer advisory issued in July by the FCC’s Robocall Response Team that warned consumers of the rising threat of robotexts and included steps consumers can take to protect themselves from scam text messages, including not responding to suspicious texts, even if the message requests that you text “STOP” to end messages and not clicking on links. The Notice seeks comment on additional ways the FCC can reach consumers to educate them on scam texts and whether consumer reporting of scam texts can help the FCC take enforcement actions against bad actors. Other federal agencies are also engaged in warning consumers, with the Federal Trade Commission and Internal Revenue Service alerting consumers to texting scams about unemployment, stimulus funds and COVID-19 vaccines.
The Costs and Benefits of Blocking Illegal Text Messages
The FCC estimates that blocking illegal text messages will result in a benefit of at least $6.3 billion. This figure assumes a nuisance harm of five cents per spam text and 86 billion spam texts per year, totaling $4.3 billion. Loss from fraud accounts for the additional $2 billion. These figures do not include the nonquantifiable benefits from reducing delays in responding to spam 9-1-1 texts and reducing network congestion. The Commission tentatively concludes that any cost to providers associated with text blocking will be outweighed by the benefits received.
Conclusion
With far-reaching implications on wireless service providers, OTT messaging providers, public safety agencies, businesses that rely on text messaging and consumers, final Commission action on the proposals outlined in the NPRM is likely to be months away. Interested parties should review the NPRM in full, note the due dates for comments and reply comments, and contact Pillsbury’s Communications practice for more information or if you would like to participate in this important proceeding.