[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Proposed Rules]
[Pages 5177-5183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28833]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket Nos. 02-278, 21-402; FCC 23-107; FR ID 194251]


Targeting and Eliminating Unlawful Text Messages; Implementation 
of the Telephone Consumer Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on several issues. First, the Commission 
proposes a text blocking requirement following Commission notification 
and seeks comment on other options for requiring providers to block 
unwanted or illegal texts. Second, the Commission seeks

[[Page 5178]]

further comment on text message authentication, including the status of 
any industry standards in development. Finally, the Commission proposes 
to require providers to make email-to-text services opt in.

DATES: Comments are due on or before February 26, 2024 and reply 
comments are due on or before March 11, 2024.

ADDRESSES: You may submit comments, identified by CG Docket Nos. 02-278 
and 21-402, by any of the following methods:
    <bullet> Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
    <bullet> Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, 35 FCC Rcd 2788 (OMD 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy. In the event that the Commission announces the 
lifting of COVID-19 restrictions, a filing window will be opened at the 
Commission's office located at 9050 Junction Drive, Annapolis, MD 
20701.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#7c1a1f1f494c483c1a1f1f521b130a"><span class="__cf_email__" data-cfemail="b5d3d6d6808581f5d3d6d69bd2dac3">[email protected]</span></a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice).

FOR FURTHER INFORMATION CONTACT: Jerusha Burnett of the Consumer Policy 
Division, Consumer and Governmental Affairs Bureau, at 
<a href="/cdn-cgi/l/email-protection#a0cac5d2d5d3c8c18ec2d5d2cec5d4d4e0c6c3c38ec7cfd6"><span class="__cf_email__" data-cfemail="5f353a2d2a2c373e713d2a2d313a2b2b1f393c3c71383029">[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#107d797b713e6371667962507673733e777f66"><span class="__cf_email__" data-cfemail="5b3632303a75283a2d32291b3d3838753c342d">[email protected]</span></a> or (202) 418-0384.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rulemaking (Second FNPRM), in CG Docket Nos. 
02-278 and 21-402; 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.
    This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. 47 CFR 
1.1200 through 1.1216. Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentations must contain 
summaries of the substance of the presentations and not merely a 
listing of the subjects discussed. See 47 CFR 1.1206(b). Other rules 
pertaining to oral and written ex parte presentations in permit-but-
disclose proceedings are set forth in Sec.  1.1206(b) of the 
Commission's rules, 47 CFR 1.1206(b).

Initial Paperwork Reduction Act of 1995 Analysis

    The Second FNPRM may contain proposed new or modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and OMB 
to comment on any information collection requirements contained in this 
document, as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13. Pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission 
seeks specific comment on how to further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.

Providing Accountability Through Transparency Act

    The Providing Accountability Through Transparency Act, Public Law 
118-9, requires each agency, in providing notice of a rulemaking, to 
post online a brief plain-language summary of the proposed rule. The 
required summary of the Second NPRM is available at https://www.fcc.gov/proposed-rulemakings.

Synopsis

    1. Text Blocking. The Commission proposes and seeks comment on 
additional text blocking options to better protect consumers from 
illegal texts. Specifically, the Commission proposes and seeks comment 
on extending the text blocking requirement to include originating 
providers, and to require all immediate downstream providers to block 
the texts from providers that fail to block after Commission 
notification. The Commission also seeks additional comment on whether 
to require this blocking to be based on number, source, the 
substantially similar traffic standard, or some other standard. Next 
the Commission seeks comment on requiring providers to block texts 
based on content-neutral reasonable analytics. Third, the Commission 
seeks comment on traceback for text messaging, including whether to 
adopt a traceback response requirement for text messaging. Fourth, the 
Commission seeks comment on any other rules to effectively protect 
consumers from illegal texts. Finally, the Commission seeks comment on 
any additional protections that may be necessary in case of erroneous 
blocking.
    2. Expanding the Mandatory Text Blocking Requirement to Originating 
Providers and Adding a Downstream Provider Blocking Requirement. The 
Commission proposes and seeks comment on extending the requirement to 
block following Commission notification of illegal texts to other 
providers generally, and originating providers specifically. The 
Commission believes that originating providers are similar to gateway 
or originating voice service providers in that they are the first U.S.-
based provider in the text path and that applying an analogous rule to 
originating providers could help ensure that these providers are 
properly incentivized to stop illegal texts even before the Commission 
sends any notice. The Commission seeks comment on this view.
    3. The Commission seeks comment on whether and, if so, how to 
define originating providers here. Is the originating provider the 
first provider in the text path, and therefore in a similar position to 
a gateway or originating voice service provider? Are there other 
providers in the path that are more similar to a gateway provider? 
Alternatively, should the Commission apply these rules to some other 
entity in the chain to better protect consumers? The call blocking 
rules help hold bad-actor voice service providers responsible for the 
calls they allow onto the network by denying those voice service 
providers access to the network entirely when they have demonstrated 
noncompliance. Is there a particular type of entity in the texting 
ecosystem that is more likely to either intentionally

[[Page 5179]]

or negligently shield those sending illegal texts?
    4. The Commission proposes and seeks comment on requiring 
originating providers to block all texts from a particular source 
following Commission notification. Is this an appropriate standard for 
blocking? How might originating providers determine the source of a 
particular text or texts in order to comply with this rule? 
Alternatively, should the Commission require blocking based on the 
number or numbers, as the Commission does for terminating providers? If 
so, how effective is such a requirement? If not, should the Commission 
also change the standard for terminating providers to match the 
standard for originating providers, or do originating providers have 
access to more information, making a broader requirement to block based 
on source appropriate?
    5. Should the Commission limit the length of time for which 
blocking is required? If so, how long should the Commission require 
providers to block? Alternatively, should the Commission require 
originating and/or terminating providers to block using the 
substantially similar standard applied in the call blocking rules? The 
Commission believes that texting may present concerns unique from 
calling that justify a different standard, or require additional 
guidance for compliance. For example, while a voice service provider 
will not have the content of a particular call prior to that call 
reaching the recipient, a texting provider likely does have access to 
this information. Given that, should the Commission require that 
blocking be content as well as competitively neutral? Are there any 
other standards the Commission should consider?
    6. The Commission seek comment on whether the process for voice 
service providers should be applied here to texting. The current rules 
for call blocking lay out a detailed process that must be followed 
before requiring all immediate downstream providers to block all of an 
identified voice service provider's traffic. Is this process 
appropriate for the texting environment, or are there differences 
between texting and calling that justify modifications? Several 
commenters expressed concerns about the delays inherent in this 
process. While the process works well for calling, delays may have 
different consequences in the texting context. Is a delay particularly 
significant when dealing with texts compared to calls? Why or why not? 
If so, are there changes the Commission could make to address this 
issue while still ensuring that providers are afforded sufficient due 
process? For example, should the Commission, as is done in the calling 
context, allow 14 days for the originating provider to investigate and 
respond following the Notification of Suspected Illegal Texts or should 
it change that time frame? Should the Commission establish a different 
docket for text blocking Orders, or use the same docket used for call 
blocking?
    7. Requiring Blocking of Texts Based on Reasonable Analytics. The 
Commission seeks comment on requiring or incentivizing providers to 
block texts based on reasonable analytics. The call blocking rules 
provide a safe harbor for the blocking of unwanted calls based on 
reasonable analytics on an opt-out basis. In addition, the call 
blocking rules provide a safe harbor for the blocking of calls without 
consumers' consent and calls that are highly likely to be illegal based 
on reasonable analytics. In both cases, the Commission requires that 
analytics are applied in a non-discriminatory, competitively neutral 
manner. The Commission also recently sought comment on requiring 
terminating voice service providers to offer opt-out blocking services 
for calls that are highly likely to be illegal. The Commission has not 
yet addressed text blocking based on reasonable analytics.
    8. The Commission seeks comment on whether and how to define 
reasonable analytics for this purpose. The record indicates that many 
providers already make use of analytics or other techniques to block 
illegal texts. What analytics do providers use to identify unwanted or 
illegal texts? If providers are reluctant to share specifics to avoid 
tipping off bad actors, the Commission seeks comment on broad criteria 
that providers may use. For example, a call-blocking program might 
block calls based on a combination of factors, such as: large bursts of 
calls in a short timeframe, low average call duration, low call 
completion ratios, invalid numbers placing a large volume of calls.
    9. The Commission seeks comment on whether, and to what extent, 
providers use volumetric triggers to identify bad traffic. Do any of 
the call-blocking reasonable analytics factors apply to text and, if 
so, which ones? Are there other content-neutral factors that are more 
likely to indicate that a text is illegal that do not apply in the 
calling context? If the Commission adopts such a rule, are there any 
necessary modifications the Commission should make to accommodate small 
businesses? As noted above, the content of a text is available to the 
provider at the time that blocking occurs, which is not generally true 
for calls. If the Commission requires providers to block based on 
reasonable analytics, should the Commission require that these 
analytics be content-neutral? Should the Commission also require that 
the blocking be non-discriminatory and competitively neutral? 
Alternatively, are there ways the Commission could encourage this 
blocking without requiring it? Are there any other issues the 
Commission should consider?
    10. Because texting is currently classified as an information 
service, the Commission does not believe that providers need safe 
harbor protections to engage in this type of blocking. The Commission 
seeks comment on this belief. Do providers risk liability when they 
block erroneously? If so, what can the Commission do to reduce that 
risk while still ensuring that wanted, lawful texts reach consumers?
    11. Alternative Approaches. The Commission seeks comment on 
alternative blocking or mitigation rules the Commission could adopt to 
target unwanted and illegal texts and better protect consumers. Are 
there approaches the Commission has not considered here that would stop 
illegal texts and protect consumers? What can the Commission do to 
encourage or require providers to adopt these approaches? For example, 
can the Commission take steps to encourage information sharing between 
providers?
    12. Protections Against Erroneous Blocking. If the Commission 
adopts additional text blocking requirements, should the Commission 
also adopt additional protections against erroneous text blocking? The 
rules already require providers to provide a point of contact for 
blocking issues. Considering that providers can and do block texts, is 
this sufficient, or are other protections necessary? If so, what 
protections should the Commission adopt? For example, should the 
Commission create a white list for ``legitimate research organizations 
and/or research campaigns'' or other entities, or would doing so raise 
legal or policy concerns? Similarly, should the Commission require some 
form of notification when texts are blocked, similar to the requirement 
when calls are blocked based on reasonable analytics? If so, how can 
providers send a notification, technically? Should the Commission 
require notification only to certain categories of blocking? Or, should 
the Commission require providers to give advance notice when a number 
is flagged as suspicious and may be blocked along with several other 
protections? Alternatively, should the Commission adopt the same 
protections already in place for erroneous blocking

[[Page 5180]]

of calls? What are the risks and benefits of each approach?
    13. Text Message Authentication. The Commission seeks additional 
comment on text message authentication and spoofing. The Commission has 
so far declined to adopt authentication requirements for texting. The 
record thus far is mixed on the feasibility of such a requirement, with 
commenters noting that the STIR/SHAKEN caller ID authentication system 
is designed to work only on internet Protocol (IP) networks. Further, 
the record indicates that number spoofing is comparatively rare in SMS 
and MMS. The Commission believes it is important to continue to build a 
record on these issues and ensure awareness of any new developments or 
concerns. The Commission therefore seeks further comment on the need 
for and feasibility of text authentication. In particular, commenters 
should address whether number spoofing is an issue in text messaging 
and, if so, the extent of the problem. If number spoofing is uncommon, 
are there steps the Commission can take to ensure that it remains the 
exception rather than the rule? Do bad actors use other spoofing 
techniques, such as identity spoofing? If so, what can the Commission 
do to address this problem? Commenters should also discuss any new or 
in-process technical standards for authentication in text messaging, 
including their current status and any timelines for development. What 
issues will these new tools address? If the new technical standards are 
designed to prevent number spoofing, is this evidence of a more 
significant spoofing issue than commenters acknowledged in response to 
the Second FNPRM? If so, should the Commission act more quickly in this 
area, rather than waiting for the standards bodies to finish their 
work?
    14. The Commission seeks comment on whether it should require 
industry to regularly provide updates with its progress on text 
authentication. The Commission believes doing so would ensure that the 
Commission has the most up-to-date information available without having 
to adopt further notices of proposed rulemaking covering this topic. Is 
this belief correct? If so, how often should the Commission require 
industry to provide updates and how should the Commission determine 
when further updates are no longer required? For example, should the 
Commission set a six-month cycle for updates over the next two years? 
Or should the Commission require some other update cycle and endpoint?
    15. Traceback. Traceback has been a key part of the Commission's 
strategy for combating illegal calls. The Commission seeks comment on 
whether it should require a response to traceback requests for texting. 
The Commission seeks comment on requiring providers to respond to 
traceback requests from the Commission, civil or criminal law 
enforcement within 24 hours, consistent with the existing rule for 
gateway voice service providers and the recently adopted rule for all 
voice service providers that took effect on January 8, 2024, see 88 FR 
43446-01 (July 10, 2023). Should the Commission also include the 
industry traceback consortium as an entity authorized to conduct 
traceback of texts, or is there some other entity that should be 
included? Is traceback for texting similar enough to traceback for 
calls for such a requirement to be effective? Are there any changes the 
Commission should make to the rule to ensure that traceback works for 
texts? How should the Commission handle aggregators and cloud 
platforms? Are there industry efforts that are already in operation, 
such as CTIA--The Wireless Association's Secure Messaging Initiative, 
that could replace or complement a traceback requirement? Are there 
other issues the Commission should consider in adopting a traceback 
requirement?
    16. The Commission seeks comment on the specifics of the traceback 
process for texts, as well as any obstacles to industry-led traceback 
efforts that may work alongside or in place of rules the Commission may 
establish. Are tracebacks typically conducted for texting? If so, what 
does the process look like? Are there types of providers that are 
routinely reluctant to respond to these requests? Is information from 
traceback processes shared and then incorporated into blocking 
decisions? Are there network modifications, standards, or changes to 
software or hardware that would enable efficient texting traceback? If 
the Commission adopts a traceback requirement for texting, are there 
any necessary modifications the Commission should make to accommodate 
small business? Is there anything else the Commission should know about 
traceback for texting?
    17. E-Mail-to-Text Messages. The Commission proposes to require 
providers to make email-to-text an opt in service, so that subscribers 
wishing to receive these types of messages would first have to opt in 
to the service. Would such a rule reduce the quantity of fraudulent 
text messages consumers receive? Does the anonymity of email-to-text 
make it more attractive to fraudulent texters? Commenters should 
discuss any drawbacks to requiring providers to block such messages if 
the consumer has not opted in to such service. For example, would this 
result in blocking important or urgent messages? If so, how could the 
Commission reduce this risk? Are there alternatives to making this 
service opt in that would have a similar effect? If so, what are they 
and how would they compare? Commenters should discuss how the 
Commission should define ``email-to-text service.'' Are there analogous 
services that should be covered, e.g., voicemail-to-text? The 
Commission seeks comment on the details of any opt-in requirement and 
if the opt-in should be in writing. Must it be stand-alone and 
conspicuous? Will providers have the burden of demonstrating opt-in 
decisions? Are there any other issues the Commission should consider in 
adopting a rule?
    18. Further Efforts to Assist Small Businesses with Compliance. The 
Commission seeks further comment on how the Commission can refine and 
expand its efforts to assist businesses, particularly small businesses, 
in complying with the one-to-one consent requirement. The Commission 
has determined based on the record that prior express written consent 
required under the Telephone Consumers Protection Act (TCPA) must be 
given to one seller at a time. Some commenters raised concerns that 
this requirement will increase costs or otherwise disadvantage small 
business lead generators and/or small business lead buyers. The 
Commission, therefore, is committed to monitoring the impact that the 
rule has on these businesses and to assist small businesses with 
complying with the one-to-one consent rule. The Commission seeks 
comment on whether and how it can further minimize any potential 
economic impact on small businesses in complying with the one-to-one 
consent requirement for prior express written consent under the TCPA. 
Are there ways to further clarify or refine this requirement to further 
minimize any compliance costs? What impact would such refinements have 
on consumers? Are there further outreach efforts or other ways the 
Commission can assist small businesses in complying with the one-to-one 
consent rule?
    19. Benefits and Costs. The Commission estimates that the total 
harm of unwanted and illegal texts is at least $16.5 billion. Assuming 
a nuisance harm of five cents per spam text, the Commission estimates 
total nuisance harm to be $11.3 billion (i.e., five cents

[[Page 5181]]

multiplied by 225.7 billion spam texts). Further, the Commission 
estimates that an additional $5.3 billion of harm occurs annually due 
to fraud. Previously, the Commission estimated the harm due to fraud 
from scam texts at $2 billion. The Commission revised this figure 
upward in proportion with the increase in spam texts, resulting in an 
estimate of $5.3 billion. The Commission seeks comment on these 
estimates of harm and on the costs of the proposals to reduce the harm 
of unwanted and illegal texts. The Commission will analyze any detailed 
cost data received in comments.
    20. Digital Equity and Inclusion. The Commission, as part of its 
continuing effort to advance digital equity for all, including people 
of color and others who have been historically underserved, 
marginalized, and adversely affected by persistent poverty and 
inequality, invites comment on any equity-related considerations and 
benefits (if any) that may be associated with the proposals and issues 
discussed herein. Specifically, the Commission seeks comment on how the 
proposals may promote or inhibit advances in diversity, equity, 
inclusion, and accessibility.
    21. Legal Authority. The Commission seeks comment on its authority 
to adopt several issues: (i) additional blocking requirements and 
related approaches to protect consumers from illegal texts; (ii) text 
message authentication; and (iii) whether to make email-to-text an opt-
in service. The Commission has authority to regulate certain text 
messages under the TCPA, particularly with regard to messages sent 
using an autodialer and without the consent of the called party. The 
Commission seeks comment on whether it has legal authority to adopt 
rules addressing these issues under the TCPA or the TRACED Act. For 
example, is the Commission's TCPA jurisdiction sufficient to support 
the blocking proposals, and does the TRACED Act provide the Commission 
with additional authority to adopt these rules?
    22. Similarly, does the TCPA grant the Commission sufficient 
authority to adopt the rules regarding requiring email-to-text to be an 
opt-out service? Commenters should also discuss whether the Commission 
has authority for the proposals under section 251(e) of the 
Communications Act, which provides the Commission with ``exclusive 
jurisdiction over those portions of the North American Numbering Plan 
that pertain to the United States,'' particularly to adopt any 
authentication, traceback, or blocking requirements. The Commission 
found authority to implement STIR/SHAKEN for voice service providers 
under section 251(e) of the Act in order to prevent the fraudulent 
exploitation of numbering resources. Does section 251(e) of the Act 
grant the Commission authority to adopt implementation of 
authentication for text messages?
    23. The Commission seeks comment on the authority under the Truth 
in Caller ID Act for these proposals. The Commission found that it has 
authority under this statute to adopt a blocking requirement in the 
Text Blocking Order, 88 FR 21497 (April 11, 2023), and FNPRM, 88 FR 
20800 (April 7, 2023). The Commission also found authority under this 
provision to mandate STIR/SHAKEN implementation, explaining that it was 
``necessary to enable voice service providers to help prevent these 
unlawful acts and to protect voice service subscribers from scammers 
and bad actors.'' The Commission seeks comment on whether that same 
reasoning applies here. The Commission also seeks comment on whether it 
has authority for these proposals under Title III of the Act. Are there 
any other sources of authority the Commission could rely on to adopt 
any of the rules discussed in the Second FNPRM?

Initial Regulatory Flexibility Analysis

    24. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA) the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies proposed in 
the Second FNPRM. Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments in the Second FNPRM. The Commission will 
send a copy of the entire Second FNPRM, including the IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the Second FNPRM and the IRFA (or summaries thereof) will 
be published in the Federal Register.
    25. Need for, and Objectives of, the Proposed Rules. In the Second 
FNPRM, the Commission proposes additional action to stop unwanted and 
illegal text messages that may harass and defraud consumers. 
Specifically, the Commission proposes extending the call blocking 
requirements to require all downstream providers to block the texts 
from upstream providers that fail to block after Commission 
notification. The Commission also seeks comment on requiring providers 
to block texts based on content-neutral analytics, and on whether it is 
appropriate to adopt a 24-hour traceback response requirement for text 
messaging. The Second FNPRM also requests comment on alternative 
approaches to protect consumers from unwanted texts, and any additional 
protections that may be necessary in case of erroneous blocking. In 
addition, the Commission seeks comment on the viability of text 
authentication, and whether it should require industry updates on its 
feasibility. Finally, the Commission proposes requiring providers to 
make email-to-text an opt-in service.
    26. Legal Basis. The proposed action is authorized pursuant to 
sections 4(i), 4(j), 227, 301, 303, 307, and 316 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 227, 301, 303, 307, 
and 316.
    27. Description and Estimate of the Number of Small Entities to 
Which the Proposed 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 proposed rules and 
policies, if adopted. 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) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    28. 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's 
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.
    29. 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

[[Page 5182]]

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.
    30. 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.''
    31. Wireless Carriers and Service Providers. Wireless 
Telecommunications Carriers (except Satellite) is the closest industry 
with an SBA small business size standard applicable to these service 
providers. The SBA small business 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 that 
operated in this industry for the entire year. Of this number, 2,837 
firms employed fewer than 250 employees. Additionally, based on 
Commission data in the 2021 Universal Service Monitoring Report, as of 
December 31, 2020, there were 797 providers that reported they were 
engaged in the provision of wireless services. Of these providers, the 
Commission estimates that 715 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.
    32. 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.
    33. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities. The Second FNPRM includes 
proposals that may alter the Commission's current information 
collection, reporting, recordkeeping, or compliance requirements for 
small entities. Specifically, the proposal to extend call blocking 
mandates to require all downstream providers to block the texts from 
upstream providers that fail to block after Commission notification, 
and requiring providers to block texts based on content-neutral 
analytics would create new obligations for small entities and other 
providers. Similarly, establishing a 24-hour traceback response 
requirement for text messaging and requiring providers to make email-
to-text an opt in service would also impose new compliance obligations 
on all providers, including small businesses. Additional blocking 
requirements, if adopted, such as requiring originating providers to 
block texts after notification from the Commission that the texts are 
likely to be illegal should not be a burden for small entities due to 
the fact that mobile wireless providers are currently blocking texts 
that are likely to be illegal. The Commission anticipates that the 
information it will receive relating to cost and benefit analyses will 
help identify and evaluate relevant compliance matters for small 
entities, including compliance costs and other burdens that may result 
from the proposals and inquiries we make in the Second FNPRM.
    34. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant, specifically small business, 
alternatives that it has considered in reaching its approach, which may 
include the following four alternatives, among others: ``(1) the 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for such small 
entities; (3) the use of performance, rather than design, standards; 
and (4) and exemption from coverage of the rule, or any part thereof, 
for such small entities.'' In the Second FNPRM the Commission 
considered and seeks comment on several alternatives that may 
significantly impact small entities. As the Commission evaluates 
additional blocking requirements to protect consumers from illegal 
texts, the Commission seeks comment on how to define originating 
providers, and whether it should apply these rules to some other entity 
in the chain to better protect consumers. The Commission proposes 
blocking messages based on their source, but considers alternatively 
whether they should be blocked on other criteria such as traffic that 
is ``substantially similar'' to blocked texts. In addition, the 
Commission seeks comment on alternatives to requiring providers to 
block texts based on content-neutral reasonable analytics. The 
Commission also requests comment on alternatives to the proposed 
blocking or mitigation rules that would help to protect consumers from 
unwanted and illegal texts. The Commission expects to fully consider 
whether any of the costs associated with the proposed text blocking 
requirements can be alleviated for small entities and any alternatives 
to minimize the economic impact for small entities following the review 
of comments filed in response to the Second FNPRM.
    35. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules. None.

List of Subjects in 47 CFR Part 64

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

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 64 as follows:

[[Page 5183]]

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation to part 64 continues 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, 617, 620, 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

0
2. Amend Sec.  64.1200 by adding paragraph (s) to read as follows:


Sec.  64.1200   Delivery restrictions.

* * * * *
    (s) A mobile wireless provider must:
    (1) 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)(1), 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; provide the basis for the 
Enforcement Bureau's determination that the identified texts are 
unlawful; cite the statutory or regulatory provisions the identified 
texts violate; direct 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 Illegal Texts in EB 
Docket No. 23-418 available 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.
    (2) If an originating provider, upon receipt of a Notification of 
Suspected Illegal Texts from the Commission through its Enforcement 
Bureau, take the actions described in this paragraph (s)(2), including, 
when required, blocking all texts from the source. The Enforcement 
Bureau will issue a Notification of Suspected Illegal Texts that 
identifies with as much particularity as possible the suspected illegal 
texts including the number(s) used and the date(s) the texts were sent 
or received; provides the basis for the Enforcement Bureau's reasonable 
belief that the identified texts are unlawful; cites the statutory or 
regulatory provisions the identified texts appear to violate; and 
directs the provider receiving the notice that it must comply with this 
section. The Enforcement Bureau's Notification of Suspected Illegal 
Texts shall give the identified provider a minimum of 14 days to comply 
with the notice. Each notified provider must promptly investigate the 
identified texts and report the results of that investigation to the 
Enforcement Bureau within the timeframe specified in the Notification 
of Suspected Illegal Texts.
    (i) The provider must include a certification that it is blocking 
all texts from the source, and will continue to do so unless:
    (A) The provider determines that the identified texts are not 
illegal, in which case it shall provide an explanation as to why the 
provider reasonably concluded that the identified texts are not illegal 
and what steps it took to reach that conclusion; or
    (B) The provider learns that the number has been reassigned and the 
source cannot be otherwise identified in a content-neutral and 
competitively-neutral manner, 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 should notify the Enforcement Bureau and cease 
blocking unless further blocking of the source can be done in a 
content-neutral and competitively neutral manner.
    (ii) If an originating mobile wireless provider fails to respond to 
the Notification of Suspected Illegal Texts, the Enforcement Bureau 
determines that the response is insufficient, the Enforcement Bureau 
determines that the provider is continuing to originate texts from the 
same source that could be blocked after the timeframe specified in the 
Notification of Suspected Illegal Texts, or the Enforcement Bureau 
determines based on the evidence that the texts are illegal despite the 
provider's assertions, the Enforcement Bureau may issue an Initial 
Determination Order to the provider stating the Bureau's initial 
determination that the provider is not in compliance with this section. 
The Initial Determination Order shall include the Enforcement Bureau's 
reasoning for its determination and give the provider a minimum of 14 
days to provide a final response prior to the Enforcement Bureau making 
a final determination on whether the provider is in compliance with 
this section.
    (A) If an originating mobile wireless provider does not provide an 
adequate response to the Initial Determination Order within the 
timeframe permitted in that Order or continues to originate texts from 
the same source onto the U.S. network, the Enforcement Bureau may issue 
a Final Determination Order finding that the provider is not in 
compliance with this section. The Final Determination Order shall be 
made available in EB Docket No. 22-174 at https://www.fcc.gov/ecfs/search/search-filings. A Final Determination Order may be issued up to 
one year after the release date of the Initial Determination Order and 
may be based on either an immediate failure to comply with this rule or 
a determination that the provider has failed to meet its ongoing 
obligation under this rule to block all texts from the identified 
source.
    (B) When notified by the Commission through its Enforcement Bureau 
that a Final Determination Order has been issued finding that an 
originating mobile wireless provider has failed to block as required 
under paragraph (s)(1) of this section, block and cease accepting all 
texts received directly from the identified originating provider 
beginning 30 days after the release date of the Final Determination 
Order. This paragraph (s)(2) applies to any provider immediately 
downstream from the originating provider. The Enforcement Bureau shall 
provide notification by making the Final Determination Order in EB 
Docket No. 22-418 available at https://www.fcc.gov/ecfs/search/search-filings. Providers must monitor EB Docket No. 22-174 and initiate 
blocking no later than 30 days from the release date of the Final 
Determination Order.

[FR Doc. 2023-28833 Filed 1-25-24; 8:45 am]
BILLING CODE 6712-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>