In an effort to eliminate unlawful text messages, the FCC has published a draft order on rules that includes the following provisions:
- Close the lead generator loophole by requiring one-to-one consent
- 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.
- Robotexts 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 click through links to each seller’s consent page.
- Codify National Do-Not-Call Registry protection to 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.
- Encourage providers to make email-to-text an opt-in service.
- 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 blocking of text messages
- by terminating service providers when notified by the FCC Enforcement Bureau.
- The rule does not require terminating providers to block substantially similar traffic.
The FCC will not adopt caller ID authentication requirements for text messages at this time, and will discuss and vote on these rules at their open Commission meeting on December 13, 2023.
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