On December 18, 2023, the Federal Communications Commission (FCC) released a second report and order, further notice of proposed rulemaking and waiver order outlining new rules and regulations under the Telephone Consumer Protection Act (TCPA) to limit unwanted and unlawful texting. The FCC order seeks to close the "lead generator loophole" by which lead generators rely on a single consent granted by the consumer to allow solicitation by multiple businesses at once. Now, prior express written consent can only apply to a single seller at a time and must be logically and topically related to the interaction the prompted consent. It also codifies the application of do-not-call rules to texting and seeks to limit fraudulent texts with further blocking requirements and optional opt-in email-to-text programs.
Key Rules in the Report and Order
One-to-One Consent
The order amends the "prior express written consent" requirement to state that consent must clearly and conspicuously authorize communications using an auto dialer or prerecorded message from a single seller at a time (i.e., "one-to-one consent") and that such calls and texts must be logically and topically related to the interaction that prompted consent.
Codifying Do-Not-Call Rule for Texts
The order codifies prior FCC and court precedent that the application of the TCPA's Do-Not-Call Registry provisions apply to text messages, making it illegal for marketing texts to be sent to numbers on the registry without an exception.
Block-Upon-Notice Requirement
The FCC previously issued a rule back in March 2023 that required mobile wireless providers to block text messages at the network level for any texts originating from numbers on a reasonable do-not-originate list. In this second order, the FCC will require mobile wireless providers to block all texts from a particular number following notification from the FCC of suspected illegal texts from that number, unless a provider's investigation shows the identified texts are legal. The new rule will be effective 180 days after publication.
Email-to-Text Optional Opt-In
The order encourages, but does not mandate, that providers make email-to-text an opt-in service to reduce the number of fraudulent and illegal text messages consumers receive. Email-to-text is where an email address, rather than a telephone number, is the originating source of a text. The FCC is seeking public comment on the proposal to make this a mandatory requirement.
Request for Comment and Limited Waiver
The FCC seeks public comment on further proposed efforts to combat illegal robocalls and robotexts, including on additional blocking options for certain mobile carriers, text authentication and wireless traceback issues, and mandating opting in for wireless email-to-text services. The report and order also adopts a limited waiver to allow providers to use the Reassigned Numbers Database to determine whether a number that the FCC has ordered to be blocked has been permanently disconnected, with the aim of preventing the blocking of lawful texts from a new subscriber to the number.
What Businesses Need to Consider Next
The new rules will have significant implications on the telemarketing and online lead generation industry. Therefore, potentially impacted businesses should review their texting and do-not-call policies to ensure they are in compliance with these new rules. The FCC included a reminder to companies that the burden of proof is on the texter or caller (not the lead generator) to prove that they have obtained valid consent. Businesses that use lead generators should review their contracts with these service providers to ensure compliance with these new rules and audit all lead generation sites for compliance.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
