By: Natalie Kempton
On September 27th, the Federal Communications Commission (“FCC”) released a long overdue Notice of Proposed Rulemaking (“NPRM”) to combat the increased quantity of robotexts American citizens receive on their phone daily. Robotexts are texts sent to a mobile phone using an autodialer. This type of texting is a massive issue in the United States as more than 15.6 billion spam texts were sent in September of 2022 amounting to almost 47 spam texts for every person in the United States. The FCC is responding to this deeply concerning matter with a proposal seeking to attack robotexts through two major steps: (1) mandatory blocking of illegal texts and (2) applying Caller ID authentication requirements to text messages. The FCC plans to work with mobile providers at the network level to block texts that are illegitimate, unused, unallocated or on the Do-Not-Originate list.
Understanding the basis of the regulatory framework that the FCC is building upon is key to comprehending how the NPRM is so instrumental to protecting American consumers. There are multiple fundamental Acts and provisions this proposal seeks to augment such as the Telephone Consumer Protection Act, the National Do-Not-Call Registry, the Truth in Caller ID Act, and the current STIR/SHAKEN framework. The original Act addressing spam calls and texts is the Telephone Consumer Protection Act (TCPA) passed in 1991. This Act applied the consent requirement to text messages using an auto dialer. However, it does not properly account for advanced technology used today. The National Do-Not-Call Registry (DNC) allows consumers to register their phone number to prevent them from receiving marketing texts. The DNC is still widely used, but some consumers are wary to fully rely on this service when submitting their phone numbers is a required step. The Truth in Caller ID Act bars caller ID spoofing of numbers when the goal is to defraud a person. This Act is important because it prevents persons from misleading others by using inaccurate caller ID information. However, scammers are still able to manipulate caller ID and dupe American consumers. The STIR/SHAKEN framework is the current governance system which sets a caller ID authentication standard combating illegal caller ID spoofing and developing internet protocol networks. This system simply focuses on unveiling illegal call spoofing and does not actually reduce the number of times it occurs. Therefore, it is important that the FCC’s NPRM questions the effectiveness of this governance system in accommodating authentication for text messages. There is presently a substantial regulatory framework that is currently applicable to illegal text messaging, however, it is still not enough to properly prevent the advancement of technological schemes that perpetuate robotexting.
This proposal adds onto the regulatory framework that prevents spam by specifically focusing on robotexts at a network level compared to robocalls. The FCC has historically centered their regulations to attack robocalls, however, the number of spam text messages now actually exceed that of robocalls. Robotexting has been so effective for scammers because most consumers read all of their messages and respond to them much quicker than email and other forms of communication. Therefore, this makes prevention of illegal text messaging essential. Focusing on attacking robotexts at a network level will provide a more serious and comprehensive manner of putting a stop to robotexting. Attacking these texts at a network level means that mobile providers must block the text messages rather than individual consumers having to take steps to prevent their number from being contacted by robotexters. The providers would have to use all the tools provided to them by these FCC regulations in a nondiscriminatory and content-neutral manner. Providing this type of proactive step counters the FCC’s current basic and ineffective consumer tips that merely advise consumers to not open suspicious texts or click on any dubious looking links.
This plan was proposed almost a year ago and finally unanimously passed with a 4-0 vote. The FCC has a detailed procedure for the NPRM so once it is published in the Federal Register there will be 30 days for public comments and another 15 days for reply comments. The FCC is specifically seeking public comments on the proposal to apply caller ID authentication standards to text messaging and mandating providers to detect and diligently block illegal texts before they get to consumers. The proposal seeks input and any other suggestions on actions the FCC should take to address these illegal texts. After the 45 days are up, the FCC can draft new requirements for mobile carriers and set up a final vote.
This proposal will affect virtually every person, company, and organization. American consumers will be positively affected as they are the ones directly being bombarded with robotexts. Many consumers find robotexting annoying, inconvenient, and costly. The NPRM notes that in 2020 there was nearly a 146% increase in the number of complaints from consumers about unwanted text messages and over 86 million dollars stolen through spam texting fraud schemes. FCC Chairwoman, Jessica Rosenworcel, points out that people are tired of having to worry about scam texts being an issue to their privacy and wallet. Therefore, this proposal will be strongly welcomed by consumers. However, companies and organizations may not welcome this proposal as much as the average consumer because of the way companies maintain communication and contact with consumers through texting. Texting has become a vital communication tool for connecting companies and organizations with the American people. Many businesses are concerned with how this new regulation will affect their communication and want to ensure that the FCC does not end up taking away this essential tool. This major concern is a suggested reason on why it took so long to pass the NPRM. Many believe that since most political organizations also use text messaging to aid in their campaign, politicians were corruptly allowing Americans to receive scam robotexts in order to further their political gain. There is a connection between politicians and the FCC because the President elects the FCC Commissioner. While there has been no formal investigation into this theory, it is important to note how essential robotexting can be to a variety of organizations.
The NPRM is a clear indication that the fight to halt illegal robotexts is finally being addressed in a thorough manner. Public commentary during this time will be essential to ensuring that concerns from individuals and organizations are heard and scam robotexts are properly blocked. The passing of this proposal is a very positive sign that our federal government is genuinely listening to American consumers and is taking legitimate action to prevent them from technological scams.
Student Bio: Natalie Kempton is a second-year law student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law. Natalie received a Bachelor’s Degree in International Studies and Italian from the College of the Holy Cross.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
