On March 16, the Federal Communications Commission (FCC) adopted its first set of regulations targeting what is perceived as the increasing problem of scam text messages sent to consumers. The first rule requires mobile service providers to block text messages that appear to come from phone numbers that are unlikely to transmit text messages. This includes invalid, unallocated, or unused numbers identified on a Do-Not-Originate list. It also includes numbers which subscribers have self-identified as never sending text messages, and numbers that government agencies and other well-known entities identify as not used for texting. A second rule requires each mobile wireless provider, their aggregator partners or blocking contractors to establish a point of contact, which text senders can use to inquire about blocked texts.
The FCC has also adopted its latest rule addressing illegal robocalls by expanding and enhancing provider obligations to implement the Secure Telephone Identity Revisited (STIR)/Signature-based Handling of Asserted information using toKENs (SHAKEN) caller ID authentication framework. Regulations regarding implementation of the STIR/SHAKEN protocols and procedures were first proposed back in June 2019 and adopted by the FCC in March 2020 with the purpose of combatting caller ID spoofing on public telephone networks. The STIR/SHAKEN framework enables phone companies to verify that the caller ID information transmitted with a call matches the caller’s phone number. This current action implements the framework used to trace back, block, and/or identify originators of illegal spoofed robocalls.
The new rules will require intermediate providers that receive unauthenticated Internet Protocol (IP) calls directly from domestic originating providers to use STIR/SHAKEN to authenticate those calls. Although STIR/SHAKEN has been widely implemented under FCC rules, some originating providers are not capable of using the framework. In other cases, unscrupulous originating providers may deliberately fail to authenticate calls. By requiring the next provider in the call path to authenticate those calls, the gap in the caller ID authentication regime can be closed.
Further, the new rules will expand robocall mitigation requirements. All providers will be required to take “reasonable steps” to mitigate illegal robocall traffic and submit a certification and mitigation plan to the FCC’s Robocall Mitigation Database regardless of their STIR/SHAKEN implementation status. These filings will now also include additional details on a provider’s role in the call chain, STIR/SHAKEN implementation obligations, and any recent formal law enforcement or regulatory action or investigation into suspected unlawful robocalling.
Violation of the FCC’s mandatory blocking rules could result in substantial fines due to per call forfeiture calculations. The new rules establish enforcement consequences for repeat offenders of robocall mitigation rules. The regulations also apply procedures for removal from the Robocall Mitigation Database to all intermediate providers and an expedited removal process for providers submitting facially deficient certifications.
A Further Notice of Proposed Rulemaking was also adopted by the FCC which seeks public comment regarding further regulatory actions to protect consumers, including enhanced robocall protections and text authentication measures. Public comment is also sought for proposals requiring providers to block texts from entities the FCC has cited as illegal robotexters and proposals clarifying that Do-Not-Call Registry protections would also apply to text messaging. The FCC further seeks public comment on closing the lead generator loophole through banning the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.
These new regulations establish important blocking measures for mobile carriers to actively protect consumers from scam text messages and robocalls. Troutman Pepper will continue to monitor new FCC regulations and developments in the Telephone Consumer Protection Act realm.
