[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Rules and Regulations]
[Pages 5098-5105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28832]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0 and 64

[CG Docket Nos. 21-402, 02-278, 17-59; FCC 23-107; FR ID 194243]


Targeting and Eliminating Unlawful Text Messages, Implementation 
of the Telephone Consumer Protection Act of 1991, Advanced Methods To 
Target and Eliminate Unlawful Robocalls

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) requires terminating mobile wireless providers to block 
text messages from a particular number following notification from the 
Commission. The Commission also codifies that the National Do-Not-Call 
(DNC) Registry's protections extend to text messages. In addition, the 
Commission encourages mobile wireless providers to make email-to-text, 
a major source of illegal texts, a service that consumers proactively 
opt into. The Commission closes the lead generator loophole by 
requiring comparison shopping websites to get consumer consent one 
seller at a time, if prior express written consent is required under 
the Telephone Consumer Protection Act (TCPA), and thus prohibits abuse 
of consumer consent by such websites. Finally, the Commission adopts a 
limited waiver to allow providers to use the Reassigned Numbers 
Database (RND) to determine whether a number that the Commission has 
ordered to be blocked has been permanently disconnected. Such waiver 
will help prevent blocking of lawful texts from a new subscriber to the 
number.

DATES: This rule is effective March 26, 2024, except for the amendment 
to 47 CFR 64.1200(s), in instruction 5, which is effective July 24, 
2024, and the amendment to 47 CFR 64.1200(f)(9), in instruction 6, 
which is effective January 27, 2025.

FOR FURTHER INFORMATION CONTACT: Jerusha Burnett of the Consumer Policy 
Division, Consumer and Governmental Affairs Bureau, at 
<a href="/cdn-cgi/l/email-protection#fb919e898e88939ad5998e89959e8f8fbb9d9898d59c948d"><span class="__cf_email__" data-cfemail="1e747b6c6b6d767f307c6b6c707b6a6a5e787d7d30797168">[email protected]</span></a>, 202 418-0526, or Mika Savir of the Consumer 
Policy Division, Consumer and Governmental Affairs Bureau, at 
<a href="/cdn-cgi/l/email-protection#89e4e0e2e8a7fae8ffe0fbc9efeaeaa7eee6ff"><span class="__cf_email__" data-cfemail="375a5e5c56194456415e457751545419505841">[email protected]</span></a> or (202) 418-0384.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order and Waiver Order, in CG Docket Nos. 21-402, 02-278, 
and 17-59, FCC 23-107, adopted on December 13, 2023, and released on 
December 18, 2023. The full text of this document is available online 
at https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf. To request 
this document in accessible formats for people with disabilities (e.g., 
Braille, large print, electronic files, audio format) or to request 
reasonable accommodations (e.g., accessible format documents, sign 
language interpreters, CART), send an email to <a href="/cdn-cgi/l/email-protection#7e181d1d4b4e4a3e181d1d50191108"><span class="__cf_email__" data-cfemail="d2b4b1b1e7e2e692b4b1b1fcb5bda4">[email protected]</span></a> or call 
the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530.

Congressional Review Act

    The Commission sent a copy of document FCC 23-107 to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act, 5 U.S.C. 801(a)(1)(A).

Final Paperwork Reduction Act of 1995 Analysis

    This document may contain new or modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. This document will be submitted to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
PRA. OMB, the general public, and other Federal agencies will be 
invited to comment on the new or modified information collection 
requirements contained in this proceeding.

Synopsis

    1. Mandatory Blocking Following Commission Notification. In the 
Second Report and Order, the Commission adopts, with some modification, 
proposals in the Further Notice of Proposed Rulemaking (FNPRM), 
published at 88 FR 21497 on April 11, 2023. First, the Commission 
specifically requires terminating mobile wireless providers to block 
all text messages from a particular number following notification from 
the Commission of illegal texts from that number or numbers. Upon 
receipt of such notice, a terminating wireless provider must block all 
texts from the number and respond to the Commission's Enforcement 
Bureau indicating that the provider has received the notice and is 
initiating blocking.
    2. Under this rule, the Commission's Enforcement Bureau may notify 
terminating providers of illegal texts from a number or numbers and 
such Notification of Illegal Texts shall: (1) identify the number(s) 
used to originate the illegal texts and the date(s) the texts were sent 
or received; (2) provide the

[[Page 5099]]

basis for the Enforcement Bureau's determination that the identified 
texts are unlawful; (3) cite the statutory or regulatory provisions the 
illegal texts violate; (4) direct the provider receiving the notice 
that it must comply with 47 CFR 64.1200(s) of the Commission's rules; 
and (5) provide a point of contact to be used by a subscriber to a 
listed number to dispute blocking. The Notification of Illegal Texts 
shall specify a reasonable time frame for the notified provider to 
respond to the Commission's Enforcement Bureau and initiate blocking. 
The Enforcement Bureau shall publish the Notification of Illegal Texts 
in EB Docket No. 23-418.
    3. Upon receiving the Notification of Illegal Texts, the provider 
must promptly begin blocking all texts from the identified number(s) 
within the timeframe specified in the Notification of Illegal Texts. 
The provider must respond to the Enforcement Bureau, including a 
certification that it is blocking texts from the identified number(s). 
If the provider learns that some or all of the numbers have been 
reassigned, the provider shall promptly notify the Enforcement Bureau 
of this fact and include any information it has obtained that 
demonstrates the number has been reassigned. If the provider 
subsequently determines that the number has been reassigned, it shall 
notify the Enforcement Bureau and cease blocking. In such instances, 
the Commission encourages providers to continue to use other available 
methods to protect their customers. Providers are not required to 
monitor whether any numbers subject to this blocking requirement have 
been reassigned, but are required to notify the Commission and cease 
blocking if the provider learns of a number reassignment.
    4. The Commission does not adopt any additional protections in case 
of erroneous blocking, but any individual or entity that believes its 
texts are being blocked under this rule in error can make use of the 
point of contact required under 47 CFR 64.1200(r) of the Commission's 
rules. If the provider determines that blocking should cease, it should 
notify the Enforcement Bureau of that finding, including any evidence 
that supports that finding.
    5. This rule shall be effective 180 days after publication of this 
Second Report and Order in the Federal Register, to allow providers 
additional time to ensure that they are prepared to comply. However, 
the Commission states that this rule does not require Paperwork 
Reduction Act (PRA) approval as it falls under the exception for 
collections undertaken ``during the conduct of . . . an administrative 
action or investigation involving an agency against specific 
individuals or entities.''
    6. National Do-Not-Call Registry. The Commission adopts the 
proposal to codify the National DNC Registry's existing protections to 
text messages. Texters must have the consumer's prior express 
invitation or permission before sending a marketing text to a wireless 
number in the DNC Registry. The Commission previously concluded that 
the national database should allow for the registration of wireless 
telephone numbers and that such action will further the objectives of 
the TCPA and the Do-Not-Call Act. The Commission's action is consistent 
with Federal court opinions and will both deter illegal texts and make 
DNC enforcement easier.
    7. Email-to-Text Messages. The Commission encourages providers to 
make email-to-text an opt-in service as a way to reduce the number of 
fraudulent text messages consumers receive. Texts originating from 
email addresses, rather than telephone numbers, account for a 
significant percentage of fraudulent text messages. For example, email-
to-text gateways enable anyone to send a text message to a mobile 
subscriber in relative anonymity. The email-to-text messages process 
allows the sender to be anonymous because the text is sent from an 
email account on a computer, not a phone number.
    8. Closing the Lead Generator Loophole. The Commission makes it 
unequivocally clear that texters and callers must obtain a consumer's 
prior express written consent to robocall or robotext the consumer 
soliciting their business. This requirement applies to a single seller 
at a time, on the comparison shopping websites that often are the 
source of lead generation. Lead-generated communications are a large 
percentage of unwanted calls and texts and often rely on flimsy claims 
of consent to bombard consumers with unwanted robocalls and robotexts. 
The Commission also requires that the consent must be in response to a 
clear and conspicuous disclosure to the consumer and that the content 
of the ensuing robotexts and robocalls must be logically and topically 
associated with the website where the consumer gave consent.
    9. The Commission adopts additional protections to further guard 
against consent abuse and protect consumers from unwanted robocalls and 
robotexts. First, the one-to-one consent must come after a clear and 
conspicuous disclosure to the consenting consumer that they will get 
robotexts and/or robocalls from the seller. ``Clear and conspicuous'' 
means notice that would be apparent to a reasonable consumer. In 
addition, if compliance with the Federal Electronic Signatures in 
Global and National Commerce Act (the E-Sign Act) is required for the 
consumer's signature, then all the elements of E-Sign must be present.
    10. Second, the Commission adopts the requirement that robotexts 
and robocalls that result from consumer consent obtained on comparison 
shopping websites must be logically and topically related to that 
website. Thus, for example, a consumer giving consent on a car loan 
comparison shopping website does not consent to get robotexts or 
robocalls about loan consolidation. The Commission declines to adopt a 
definition of ``logically and topically.'' This rule best balances the 
desire of businesses to utilize lead generation services to call and 
text potential customers with the need to protect consumers, including 
small businesses, from a deluge of unwanted robocalls and robotexts.
    11. The Small Business Administration's Office of Advocacy notes 
that certain small businesses rely on purchasing sales leads from lead 
generators; however, the rule adopted today only limits sellers, of any 
size, from robocalling or robotexting consumers who did not explicitly 
consent to receive such communications from a particular seller. Lead 
generators can still conduct business and collect and share leads to 
consumers interested in products and services, they just will not be 
able to collect and share the consents for telemarketing calls that 
included an artificial or prerecorded voice or are made with an 
automatic dialer. Sellers that wish to use robocalls and robotexts for 
such communications may still do so--provided they obtain consent 
consistent with the reasonable limits codified in the rule.
    12. This rule does not restrain comparison shopping, nor does it 
unnecessarily constrain a businesses' ability to rely on leads 
purchased from lead generators. For example, consumers may reach out to 
multiple businesses themselves or ask to be contacted by businesses 
only through means other than robocalling and robotexting. Further, 
sellers may avail themselves of other options for providing comparison 
shopping information to consumers, e.g., they may initiate calls or 
texts to consumers without using an autodialer or prerecorded or 
artificial voice messages or they may use email or postal mail, both to 
provide information and to solicit further one-to-one consent to 
robocall or robotext. Nothing in this rule restricts the ability of 
businesses,

[[Page 5100]]

including small businesses, from relying on leads generated by third-
party lead generators.
    13. Additionally, even under the Commission's new rule, comparison 
shopping websites can obtain the requisite consent for sellers to 
robocall and robotext consumers using easily implemented methods. For 
instance, a website may offer a check box list that allows the consumer 
to choose each seller that they wish to hear from. Alternatively, a 
comparison shopping website may offer the consumer a clickthrough link 
to a business so that it may obtain requisite consent from the consumer 
directly. The rule does not prohibit websites from obtaining leads and 
merely codifies reasonable limits on when those leads allow sellers to 
use robocalls and robotexts to reach consumers.
    14. Further, the rule protects callers who rely on leads generated 
by third parties by ensuring that such callers operate pursuant to 
legally sufficient consent from the consumers. A caller who is unable 
to meet its burden of proof in demonstrating that it had valid consent 
to initiate and robocall or robotext the individual consumer would be 
liable under the TCPA for making such a call. The rule helps callers 
and texters, including small businesses, by providing legal certainty 
as to how to meet their burden of proof when they have obtained consent 
via a third-party. Businesses relying on such leads will have an easier 
and more certain way to demonstrate that they have obtained valid 
consent to call.
    15. In addition, the Commission finds that small businesses 
themselves will benefit from the protections adopted. Small businesses 
use comparison shopping services when comparison shopping for 
businesses services. The prior express written consent requirements are 
not limited to residential lines; these requirements extend to and 
protect business phones from having their own phones inundated with 
unwanted calls and texts. Such calls to these businesses may tie up 
small business phones, annoy small business employees, and subject them 
to the same type of fraud as consumers generally.
    16. The Commission wants this important consumer protection rule to 
be successfully implemented by comparison shopping websites and lead 
generators. The Commission is adopting a 12 month implementation period 
to make the necessary changes to ensure consent complies with the new 
requirement. This implementation period will help mitigate some 
challenges to implementation of the new rules and such period should 
provide both lead generators and the callers that rely on the leads 
they generate ample time to implement our new requirements.
    17. The Commission will continue to monitor the impact that the 
rule has on small businesses and delegates to the Consumer and 
Governmental Affairs Bureau authority to conduct outreach and education 
focusing on compliance with rules for small business lead generators as 
well as for small business lead buyers. The Commission also reiterates 
that the TCPA and existing rules already place the burden of proof on 
the texter or caller to prove that they have obtained consent that 
satisfies Federal laws and regulations. They may not, for example, rely 
on comparison websites or other types of lead generators to retain 
proof of consent for calls the seller makes. And, in all cases, the 
consent must be from the consumer. ``Fake leads'' that fabricate 
consumer consent do not satisfy the TCPA or the Commission's rules. In 
addition, the consumer's consent is not transferrable or subject to 
sale to another caller because it must be given by the consumer to the 
seller.
    18. The Commission also disagrees with the argument that making it 
unequivocally clear that one-to-one consent is required for TCPA prior 
express written consent, is arbitrary and capricious. The Commission 
sought comment on this issue of consent in the FNPRM, published at 88 
FR 21497 on April 11, 2023, specifically discussed the issue of 
hyperlinks in a comparison shopping website, and illustrated the 
problem by describing Assurance IQ, a website that purports to enable 
consumers to comparison shop for insurance. As the Commission 
explained, the Assurance IQ site sought consumer consent for calls and 
texts from insurance companies and other various entities, including 
Assurance IQ's ``partner companies,'' that were listed when accessing a 
hyperlink on the page seeking consent (i.e., they were not displayed on 
the website without clicking on the link) and included both insurance 
companies and other entities that did not appear to be related to 
insurance. The Commission also sought comment on amending the TCPA 
consent requirements to require that such consent be considered granted 
only to callers logically and topically associated with the website 
that solicits consent and whose names are clearly disclosed on the same 
web page. Numerous commenters supported the Commission's proposals. 
Thus, the Commission's findings in the Second Report and Order are 
reasonably and rationally based on the issues for which the Commission 
sought comment and the comments filed.
    19. Text Message Authentication and Spoofing. The Commission does 
not adopt at this time caller ID authentication requirements for text 
messaging.
    20. Summary of Benefits and Costs. The Commission's conservative 
estimate of the total loss from unwanted and illegal texts is $16.5 
billion annually, which reflects both a substantial increase in the 
number of spam texts in recent years (the nuisance cost), and an 
increase in financial losses due to text scams. The Commission 
estimates the nuisance cost of spam texts to be five cents per text. 
This cost is multiplied by 225.7 billion spam texts sent annually and 
the result is $11.3 billion in total nuisance cost. In addition, the 
Commission estimates financial losses due to text scams to be $5.2 
billion. Further, the total loss from unwanted and illegal calls is 
relevant for the Commission's consideration of the benefit generated by 
closing the lead generator loophole. The harm of unwanted and illegal 
calls is at least $13.5 billion annually.
    21. The Commission expects the actions in the Order will impose 
minimal costs on mobile wireless providers and comparative shopping 
websites. Nothing in the record demonstrates that requiring terminating 
providers to block texts when notified by the Commission of illegal 
texts would impose significant costs on mobile wireless providers. The 
Commission expects that terminating providers aim to minimize texts 
that subject their customers to nuisance and receiving notifications 
from the Commission would assist in that effort and help providers 
improve customer satisfaction. With respect to the action codifying 
that text messages are covered by the National DNC Registry's 
protections, the Commission sees no additional cost to providers.
    22. The Commission notes that the new rules do not prohibit 
comparison shopping websites, only the use of robocalls and robotexts 
without one-to-one consent. The Small Business Administration's (SBA) 
Office of Advocacy notes that small businesses have stated that the 
proposal to require sellers to obtain consent to robocall or robotext 
from one consumer at a time could increase costs significantly for 
small businesses that both buy and sell sales leads, but the SBA did 
not offer any evidence to support this contention and did not address 
the benefit to both consumers and to small businesses in having a 
reduction of unwanted calls

[[Page 5101]]

and texts. This new rule makes it unequivocally clear that prior 
express written consent under the TCPA must be to one seller at a time, 
but does not prevent small businesses from buying and selling leads nor 
does it prevent small businesses from contacting consumers. The 
Commission observes that the rule is especially helpful for small 
business owners who are incentivized to answer all incoming calls 
because each call may be from a potential customer and are unable to 
ignore calls from unfamiliar numbers. In addition, this requirement 
will help small businesses because it will provide legal certainty as 
to how callers and texters can demonstrate valid consent when that 
consent was obtained via a third party.
    23. The Commission's decision to make unequivocally clear that 
prior express written consent under the TCPA must be one-to-one consent 
may raise costs for some businesses that use robocalling, including 
those that fall under the definition of small businesses; however, no 
party has presented any specific data to substantiate such possible 
additional costs. Further, the benefits of making it unequivocally 
clear that one-to-one consent is required for prior express written 
consent under the TCPA, will accrue to millions of individuals and 
businesses, including small businesses, and will outweigh any such 
costs to those businesses currently using multi-party ``consent'' for 
robocalls and robotexts. Any effort to create an exception for 
particular businesses, including small businesses, has the potential to 
undermine the effectiveness and intent of the policy, which is to 
provide consumers (including small businesses) the ability to determine 
when and how they are contacted in a transparent manner.
    24. The Commission sees very little cost to providers as a result 
of the encouragement to make email-to-text an opt-in service. Providers 
who do not take up this option will incur no additional cost and, for 
those providers who do so, the benefits of making email-to-text an opt-
in service, e.g., more satisfied customers, outweighs the costs of 
setting up an opt-in program and marketing it to their subscribers. 
Similarly, closing the lead generator loophole so that prior express 
written consent can only be given directly from a consumer to a single 
seller-caller at a time will result in only small additional costs for 
comparative shopping websites and should lead to greater customer 
satisfaction that may benefit such websites.
    25. Based on the analysis of the anticipated benefits and costs 
discussed above, the Commission believes the benefits of the rules 
adopted in the Report and Order significantly outweigh their costs. 
Even if these rules eliminate only a small share of unwanted and 
illegal texts and calls, the benefits would be substantial, given the 
magnitude of the likely losses from such texts and calls.
    26. Legal Authority. The Commission relies on the TCPA to adopt 
rules applicable to mobile wireless text messaging providers, including 
the text blocking requirement. First, the TCPA gives the Commission 
authority over the unsolicited text messages within the scope of the 
Order. The TCPA, in relevant part, restricts certain autodialed calls 
to wireless telephone numbers absent the prior express consent of the 
called party. The Commission has found that, for the purposes of the 
TCPA, texts are included in the term ``call.'' Because the Commission 
has authority to regulate certain text messages under the TCPA, 
particularly messages sent using an autodialer and without the consent 
of the called party, the Commission has legal authority to require 
providers to block text messages that violate the TCPA. The TCPA also 
provides authority for the consent requirements and the codification 
that text messages are covered by the National DNC Registry. The DNC 
restrictions have long applied to wireless phones and the Commission 
and courts have long held that text messages are calls under the TCPA. 
Further, the Commission is codifying that text messages are included in 
the National DNC Registry's protections--a position that the Commission 
and several courts have previously taken--not expanding the National 
DNC Registry's restrictions.
    27. To the extent that the Commission may direct providers to block 
texts where an autodialer has not been used, the Commission further 
finds authority under section 251(e)(1) of the Communications Act. 
Section 251(e)(1) provides the Commission with independent jurisdiction 
to prevent the abuse of North American Numbering Plan (NANP) resources, 
regardless of the classification of text messaging. Requiring blocking 
of a particular number that has sent known illegal texts will help 
ensure that entities sending illegal texts cannot continue to abuse 
NANP resources to further their illegal schemes. Although NANP numbers 
are used for routing calls on the public switched telephone network 
(PSTN), the authority granted in section 251(e)(1) of the Act is not 
restricted to voice calls routed via the PSTN. Rather, section 
251(e)(1) is a clear grant of authority ``over those portions of the 
North American Numbering Plan that pertain to the United States'' and 
the underlying technology does not change the fact that the numbers in 
question are portions of the NANP that pertain to the United States. 
The Commission exercises its section 251(e)(1) authority to prevent the 
abuse of NANP resources by sending illegal texts, regardless of whether 
the number is spoofed. This is consistent with the Commission's 
approach in calling, where the Commission has found that authority 
under this section does not hinge on whether a call is spoofed. The 
Commission also finds authority under Title III of the Act to adopt 
these measures. Title III ``endow[s] the Commission with `expansive 
powers' and a `comprehensive mandate to ``encourage the larger and more 
effective use of radio in the public interest.'' ' '' Section 303 of 
the Act grants the Commission authority to establish operational 
obligations for licensees that further the goals and requirements of 
the Act if such obligations are necessary for the ``public convenience, 
interest, or necessity'' and are not inconsistent with other provisions 
of law. In particular, section 303(b) authorizes the Commission to 
``[p]rescribe the nature of the service to be rendered by each class of 
licensed stations and each station within each class,'' and that is 
what the notice requirement and blocking rule addresses here. In 
addition, sections 307 and 316 of the Act allow the Commission to 
authorize the issuance of licenses or adopt new conditions on existing 
licenses if such actions will promote public interest, convenience, and 
necessity. The Commission finds that the requirements adopted for 
mobile wireless providers after they are on notice of illegal text 
messages are necessary to protect the public from illegal text messages 
and that such a requirement is in the public interest.
    28. Waiver Order. The Commission adopts a waiver, sua sponte, for a 
period of 12 months, to commence on the effective date of 47 CFR 
64.1200(s) of the Commission's rules, specifically to allow mobile 
wireless providers to access the Reassigned Numbers Database to 
determine whether a number has been permanently disconnected since the 
date of the illegal text described in the Notification of Illegal 
Texts. The Commission delegates authority to the Consumer and 
Governmental Affairs Bureau to extend the term of this waiver, if 
needed. The Commission's rules require providers ensure the efficient 
use of telephone numbers by reassigning a telephone

[[Page 5102]]

number to a new consumer after it is disconnected by the previous 
subscriber; however, when a number is reassigned, callers may 
inadvertently reach the new consumer who now has the reassigned number 
(and may not have consented to calls from the calling party). To 
mitigate these occurrences, the Commission established a single, 
comprehensive database to contain reassigned number information from 
each provider that obtains NANP U.S. geographic numbers, which enables 
any caller to verify whether a telephone number has been reassigned 
before calling that number. The use of the RND to determine if a number 
has been disconnected following a Notification of Illegal Texts is 
outside of the original scope of the RND which is available only to 
callers who agree in writing that the caller (and any agent acting on 
behalf of the caller) will use the database solely to determine whether 
a number has been permanently disconnected since a date provided by the 
caller for the purpose of making lawful calls or sending lawful texts. 
The Commission may waive its rules for good cause shown. Good cause for 
a waiver may be found if special circumstances warrant a deviation from 
the general rule and such deviation will serve the public interest. The 
Commission finds that permitting providers to access the RND for the 
purpose of determining if a number has been permanently disconnected 
after the date of an illegal text described in a Notification of 
Illegal Texts would prevent erroneous blocking of text messages (if the 
number had been reassigned) and is good cause to grant this waiver, sua 
sponte. The Commission therefore adopts a waiver, sua sponte, for a 
period of 12 months, to commence on the effective date of 47 CFR 
64.1200(s) of the Commission's rules, specifically for accessing the 
RND to determine whether a number has been permanently disconnected 
since the date of the illegal text described in the Notification of 
Illegal Texts. Providers may access the RND for this purpose in the 
same manner as they would to determine whether a number has been 
permanently disconnected since a date provided by the caller for the 
purpose of making lawful calls or sending lawful texts.

Final Regulatory Flexibility Analysis

    29. As required by the Regulatory Flexibility Act of 1980 (RFA), as 
amended, an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the FNPRM, published at 88 FR 21497, on April 11, 2023. 
The Federal Communications Commission (Commission) sought written 
public comment on the proposals in the FNPRM, including comment on the 
IRFA. The Commission received no comments in response to the IRFA. This 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.
    30. Need for, and Objectives of, the Second Report and Order. The 
Second Report and Order continues the Commission's efforts to stop the 
growing tide of unwanted and illegal texts by building on the text 
blocking requirements from the first Text Blocking Order, 88 FR 21497 
(April 11, 2023). While mobile wireless providers voluntarily block a 
significant number of unwanted and illegal texts, many of these harmful 
texts still reach consumers. The Second Report and Order requires 
terminating mobile wireless providers to block texts from a particular 
source following notification from the Commission; codifies that the 
National DNC Registry protections apply to text messages; encourages 
mobile service providers to make email-to-text an opt-in service; and 
revises the definition of prior express written consent making clear 
that consent must be to one seller at a time, and the seller must be 
logically and topically related to the content of the website on which 
consent is obtained.
    31. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. There were no comments filed that specifically 
addressed the proposed rules and policies presented in the IRFA.
    32. Response to Comments by the Chief Counsel for Advocacy of the 
Small Business Administration. Pursuant to the Small Business Jobs Act 
of 2010, which amended the RFA, the Commission is required to respond 
to any comments filed by the Chief Counsel for Advocacy of the SBA, and 
to provide a detailed statement of any change made to the proposed 
rules as a result of those comments.
    33. The Chief Counsel did not file comments in response to the 
proposed rules in this proceeding; however, the Chief Counsel filed an 
ex parte letter on December 1, 2023. The SBA contends that small 
businesses have stated that the proposal to require sellers to obtain 
consent to call or text from one consumer at a time could increase 
costs significantly for small businesses that both buy and sell sales 
leads. The SBA did not offer any evidence to support this contention 
and did not address the benefit to consumers and to small businesses in 
having a reduction of unwanted calls and texts.
    34. This rule makes it unequivocally clear that prior express 
written consent under the TCPA must be to one seller at a time, but 
does not prevent small businesses from buying and selling leads or 
prevent small businesses from contact with consumers. The requirements 
for prior express written consent for the telemarketing calls covered 
by the TCPA will also protect business phones from the floods of 
unwanted prerecorded telemarketing calls. This is especially helpful 
for small business owners who are incentivized to answer all incoming 
calls because each call may be from a potential customer and they are 
unable to ignore calls from unfamiliar numbers. In addition, this 
requirement will help small businesses because it will provide legal 
certainty as to how callers and texters can demonstrate valid consent 
when that consent was obtained via a third party.
    35. The Commission acknowledges that the decision to make 
unequivocally clear that prior express written consent under the TCPA 
must be one-to-one consent may raise costs for some businesses, 
including those that fall under the definition of small businesses, in 
that direct consent between a consumer and a seller requires more labor 
and administration than a blanket authorization for affiliated 
companies to contact an individual. However, the benefits of this 
policy, which accrue to millions of individuals and businesses, 
including small businesses, outweigh the costs to those businesses 
currently benefiting from multi-party ``consent.'' Over time, it may be 
possible for technological solutions to lower the costs to businesses 
for seeking one-to-one prior express written consent and maintaining 
consent records. Any effort to create an exception for particular 
businesses, including small businesses, has the potential to undermine 
the effectiveness and intent of the policy, which is to provide 
consumers (including small businesses) the ability to determine when 
and how they are contacted in a transparent manner.
    36. Description and Estimate of the Number of Small Entities to 
Which the Rules Will Apply. The RFA directs agencies to provide a 
description of and, where feasible, an estimate of the number of small 
entities that may be affected by the rules and policies adopted herein. 
The RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. A ``small business concern'' is one 
which: (1) is independently owned and operated; (2)

[[Page 5103]]

is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.
    37. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the SBA 
Office of Advocacy, in general a small business is an independent 
business having fewer than 500 employees. These types of small 
businesses represent 99.9% of all businesses in the United States, 
which translates to 33.2 million businesses. Next, the type of small 
entity described as a ``small organization'' is generally ``any not-
for-profit enterprise which is independently owned and operated and is 
not dominant in its field.'' The Internal Revenue Service (IRS) uses a 
revenue benchmark of $50,000 or less to delineate its annual electronic 
filing requirements for small exempt organizations. Nationwide, for tax 
year 2020, there were approximately 447,689 small exempt organizations 
in the U.S. reporting revenues of $50,000 or less according to the 
registration and tax data for exempt organizations available from the 
IRS. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate there were 
90,075 local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States. Of 
this number, there were 36,931 general purpose governments (county, 
municipal, and town or township) with populations of less than 50,000 
and 12,040 special purpose governments--independent school districts 
with enrollment populations of less than 50,000. Accordingly, based on 
the 2017 U.S. Census of Governments data, the Commission estimates that 
at least 48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    38. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 594 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 511 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    39. All Other Telecommunications. This industry is comprised of 
establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. Providers of 
internet services (e.g., dial-up ISPs) or Voice over internet Protocol 
(VoIP) services, via client-supplied telecommunications connections are 
also included in this industry. The SBA small business size standard 
for this industry classifies firms with annual receipts of $35 million 
or less as small. U.S. Census Bureau data for 2017 show that there were 
1,079 firms in this industry that operated for the entire year. Of 
those firms, 1,039 had revenue of less than $25 million. Based on this 
data, the Commission estimates that the majority of ``All Other 
Telecommunications'' firms can be considered small.
    40. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements for Small Entities. The Second Report and Order 
includes new or modified reporting, recordkeeping, and compliance 
requirements for small and other entities. This includes requiring 
terminating mobile wireless providers to block texts from a particular 
number or numbers following notification from the Commission. Providers 
must promptly begin blocking the identified texts if illegal, and 
respond to the notice. If the provider is unable to block further texts 
from that number because it has learned that the number has been 
reassigned the provider should promptly notify the Enforcement Bureau. 
If the provider determines at a later date that the number has been 
reassigned, it should notify the Enforcement Bureau, and cease 
blocking. Providers that fail to comply may be subject to enforcement 
penalties, including monetary forfeiture.
    41. The Second Report and Order also codifies that the National DNC 
Registry protections apply to text messages, and encourages mobile 
service providers to make email-to-text an opt-in service. 
Additionally, it revises our definition of prior express written 
consent making clear that consent must be only to one single seller-
caller from one single consumer at a time, and the seller must be 
logically and topically related to the content of the website on which 
consent is obtained. Small entities may comply with the Telephone 
Consumer Protection Act (TCPA) and contact consumers by obtaining 
consent from the consumer to one seller at a time. The Commission 
expects that small and other providers already taking significant 
measures to block illegal texts and will not find it burdensome to 
comply with these new obligations. Any such burdens would be far 
outweighed by the benefits to consumers from blocking text messages 
that are highly likely to be illegal.
    42. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to provide, ``a description of the steps the agency has taken to 
minimize the significant economic impact on small entities . . . 
including a statement of the factual, policy, and legal reasons for 
selecting the alternative adopted in the final rule and why each one of 
the other significant alternatives to the rule considered by the agency 
which affect the impact on small entities was rejected.''
    43. In the Second Report and Order, the Commission adopted text 
blocking rules modeled after the call blocking rules, but modified the 
new rules to account for the differences in the technology and delivery 
of text messages, and adopted requirements similar to those service 
providers were already familiar with to reduce any additional burdens. 
For example, a terminating provider will be required to block text 
messages only after it has received notice from the Commission's 
Enforcement Bureau. Second, text blockers are not required to block 
traffic ``substantially similar'' to the traffic the Enforcement Bureau 
identifies to avoid

[[Page 5104]]

blocking on content analysis, which could lead to over blocking. This 
modification will reduce concerns about liability for blocking 
incorrectly, as well as potential burdens if the Commission adopted a 
more expansive rule. The Commission found that commenters made general 
assertions, but offered no compelling evidence that they consistently 
block all traffic the Enforcement Bureau might identify.
    44. In the Second Report and Order, the Commission also modified 
the prior express written consent requirement for TCPA consent to 
protect consumers while preserving the ability of comparison shopping 
websites to provide consumers with comparison shopping opportunities. 
This rule revision does not change the longstanding requirement that 
callers, including small businesses, must have consent from the called 
party, to comply with the TCPA. This modification makes it unequivocal 
that one-to-one consent is required under the Commission's TCPA consent 
rules. Such a requirement should not burden small entities that use 
lead generators to reach out to potential customers, because websites, 
including comparison shopping websites, can use a variety of means for 
collecting one-to-one consent for sellers to comply with the consent 
rule. For example, a website may offer a consumer a check box list that 
allows the consumer to specifically choose each individual seller that 
they wish to hear from or may offer the consumer a clickthrough link to 
a specific business so that the business itself may gather express 
written consent from the consumer directly. A website publisher could 
also reach out to a consumer for consent after the consumer has 
provided certain requested information and the site has subsequently 
selected a specific seller or sellers to contact the consumer.
    45. The adopted modification does not prohibit comparison shopping 
websites from obtaining leads through valid consent and provides 
opportunities for such sites to obtain leads for potential callers 
(including small businesses) and texters. Further, this rule 
modification should help small businesses in reducing the number of 
unwanted and illegal calls and texts they receive, particularly if they 
cannot screen calls from unknown numbers. This rule modification best 
balances the needs of businesses, including small businesses, to 
utilize lead generation services to make calls to potential buyers with 
protecting consumers from a deluge of unwanted robocalls and robotexts. 
This will also help callers and texters, including small businesses, by 
providing legal certainty as to how to meet their burden of proof when 
they have obtained consent via a third party. Further, callers and 
texters may avail themselves of other options for providing comparison 
shopping information to consumers, e.g., manually dialed or non-
prerecorded or artificial voice calls or texts, email, or information 
displayed directly on the third party website.
    46. Report to Congress. The Commission will send a copy of the 
Second Report and Order, including this FRFA, in a report to be sent to 
Congress pursuant to the Congressional Review Act. In addition, the 
Commission will send a copy of the Second Report and Order, including 
this FRFA, to the Chief Counsel for Advocacy of the SBA.

List of Subjects

47 CFR Part 0

    Communications common carriers, Telecommunications.

47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping 
requirements, Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 0 and 64 as follows:

PART 0--COMMISSION ORGANIZATION

Subpart A--Organization

0
1. The authority citation for part 0 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, 
unless otherwise noted.


0
2. Effective March 26, 2024, amend Sec.  0.111 by revising paragraph 
(a)(27) to read as follows:


Sec.  0.111  Functions of the Bureau.

    (a) * * *
    (27) Identify suspected illegal calls and illegal texts and provide 
written notice to voice service or mobile wireless providers. The 
Enforcement Bureau shall:
    (i) Identify with as much particularity as possible the suspected 
traffic or texts;
    (ii) Cite the statutory or regulatory provisions the suspected 
traffic appear to violate or illegal texts violate;
    (iii) Provide the basis for the Enforcement Bureau's reasonable 
belief that the identified traffic or the determination that the 
illegal texts are unlawful, including any relevant nonconfidential 
evidence from credible sources such as the industry traceback 
consortium or law enforcement agencies; and
    (iv) Direct the voice service provider receiving the notice that it 
must comply with Sec.  64.1200(n)(2) of the Commission's rules or 
direct the mobile wireless provider receiving the notice that it must 
comply with 47 CFR 64.1200(s).
* * * * *

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
3. Effective March 26, 2024, the authority citation for part 64 is 
revised to read as follows:

    Authority: 47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220, 
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262, 
276, 403(b)(2)(B), (c), 616, 620, 716, 1401-1473, unless otherwise 
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.

Subpart L--Restrictions on Telemarketing, Telephone Solicitation, 
and Facsimile Advertising


Sec.  64.1200  [Amended]

0
4. Effective March 26, 2024, amend Sec.  64.1200 in paragraph (e) by 
adding ``or text messages'' after the word ``calls''.
0
5. Effective July 24, 2024, further amend Sec.  64.1200 by adding 
paragraph (s) to read as follows:


Sec.  64.1200  Delivery restrictions.

* * * * *
    (s) A terminating mobile wireless provider must, upon receipt of a 
Notification of Illegal Texts from the Commission through its 
Enforcement Bureau, take the actions described in this paragraph (s), 
including, when required, blocking all texts from the identified number 
or numbers. The Enforcement Bureau will issue a Notification of Illegal 
Texts that identifies the number(s) used and the date(s) the texts were 
sent or received; provides the basis for the Enforcement Bureau's 
determination that the identified texts are unlawful; cites the 
statutory or regulatory provisions the identified texts violate; 
directs the provider receiving the notice that it must comply with this 
section; and provide a point of contact to be used by a subscriber to a 
listed number to dispute blocking. The Enforcement Bureau's 
Notification of Illegal Texts shall give the identified provider a 
reasonable amount of time to comply with the notice. The Enforcement 
Bureau shall make the Notification of

[[Page 5105]]

Illegal Texts available in EB Docket No. 23-418 at https://www.fcc.gov/ecfs/search/search-filings. The provider must include a certification 
that it is blocking all texts from the number or numbers and will 
continue to do so unless the provider learns that the number has been 
reassigned, in which case the provider shall promptly notify the 
Enforcement Bureau of this fact and include any information it has 
obtained that demonstrates that the number has been reassigned. If, at 
any time in the future, the provider determines that the number has 
been reassigned, it shall notify the Enforcement Bureau and cease 
blocking. The provider is not required to monitor for number 
reassignments.

0
6. Effective January 27, 2025, further amend Sec.  64.1200 by revising 
paragraph (f)(9) to read as follows:


Sec.  64.1200  Delivery restrictions.

* * * * *
    (f) * * *
    (9) The term prior express written consent means an agreement, in 
writing, that bears the signature of the person called or texted that 
clearly and conspicuously authorizes no more than one identified seller 
to deliver or cause to be delivered to the person called or texted 
advertisements or telemarketing messages using an automatic telephone 
dialing system or an artificial or prerecorded voice. Calls and texts 
must be logically and topically associated with the interaction that 
prompted the consent and the agreement must identify the telephone 
number to which the signatory authorizes such advertisements or 
telemarketing messages to be delivered.
    (i) The written agreement shall include a clear and conspicuous 
disclosure informing the person signing that:
    (A) By executing the agreement, such person authorizes the seller 
to deliver or cause to be delivered to the signatory telemarketing 
calls or texts using an automatic telephone dialing system or an 
artificial or prerecorded voice; and
    (B) The person is not required to sign the agreement (directly or 
indirectly) or agree to enter into such an agreement as a condition of 
purchasing any property, goods, or services. The term ``signature'' 
shall include an electronic or digital form of signature, to the extent 
that such form of signature is recognized as a valid signature under 
applicable Federal law or State contract law.
* * * * *
[FR Doc. 2023-28832 Filed 1-25-24; 8:45 am]
BILLING CODE 6712-01-P


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