FCC Adopts New Scam Texting Rules and Proposes Rules Restricting Online TCPA Consent Practices

This article focuses on new and proposed rules intended to regulate scam texting, which also address the so-called “lead generator loophole” referenced in prior articles. The final rules included in the report would do the following:

• Message Blocking:  Require all mobile wireless providers to block certain messages that are highly likely to be illegal so that all subscribers have a basic level of protection. This includes messages sent from invalid, unallocated, or unused numbers, and also includes numbers whose subscribers have self-identified as never sending text messages, along with numbers that government agencies and other well-known entities identify as not used for texting.
• Single Point of Contact: Require each mobile wireless provider to establish a point of contact for text senders, or have providers require their aggregator partners or blocking contractors to establish such a point of contact, which senders can use to inquire about blocked texts.

At the meeting, the FCC also proposed adopting the following new rules, which it claimed would further protect consumers and the integrity of text messages as a form of communication.  Among other matters, the proposed rules would do the following:

Text Blocking:  A proposed rule would require terminating providers to block texts from any sender who the FCC has identified as sending illegal texts.

DNC Protection:  Another proposed rule would extend the National Do-Not-Call Registry’s protections to text messages.

Banning Blanket Consents:  A final proposed rule would ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.  Here is the full text of the proposed new rule, which would amend §64.1200 of the Code of Federal Regulations by revising section (f)(9) to read as follows:

The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.

Prior express written consent for a call or text may be to a single entity, or to multiple entities logically and topically associated. If the prior express written consent is to multiple entities, the entire list of entities to which the consumer is giving consent must be clearly and conspicuously displayed to the consumer at the time consent is requested.

To be clearly and conspicuously displayed, the list must, at a minimum, be displayed on the same web page where the consumer gives consent.

If adopted, this new rule would completely ban the practice of including a “marketing partners” link in a TCPA disclosure that points to a list of multiple potential callers.  If a website is seeking consent for multiple third parties to place calls and texts, it would need to include each party by name on the same web page.

In addition, each potential caller named in the disclosure must be “logically and topically associated” with the purpose of the website.  In other words, a site offering health insurance quotes could not collect consent for a solar company.  How this logical and topical requirement would apply to sweepstakes and general co-registration sites that do not address specific verticals is an open question.