Telephone and Texting Compliance News: Regulatory Update — Federal Communications Commission to Consider New Call and Text Blocking Rules, Expand Other Requirements

On September 5, the Federal Communications Commission (FCC) released a draft Eighth Report and Order (“Calling Report and Order”) and Third Report and Order (“Texting Report and Order” and with the Calling Report and Order, the “Report and Order”) that it was set to consider at its September 26 meeting. However, on September 24, the FCC announced it would no longer take up the Report and Order at its meeting, returning the item to circulation. According to press reports, Chairwoman Rosenworcel sought to revise the Report and Order further after the draft was issued to win additional Commissioner votes. Now that the Report and Order will be considered on circulation and not at an FCC meeting, the commissioners will individually consider the Report and Order, and the FCC will act when all commissioners have voted separately. It will also reopen the public’s ability to provide comments on the draft Report and Order and give the FCC added time to review the record.

Calling Report and Order

As drafted, the Calling Report and Order would resolve several pending issues from the FCC’s May 2023 Eighth Further Notice of Proposed Rulemaking and expand certain call-blocking requirements to additional providers. In particular, the Calling Report and Order would modify the FCC’s call blocking rules to require all providers in a call path to block calls from numbers on a reasonable do-not-originate (DNO) list. Currently, this obligation only applies to gateway providers (US-based intermediate providers that receive calls directly from a foreign originating provider). The FCC would not change its approach to determining a “reasonable DNO list,” continuing to offer providers the flexibility to use any list as long as it contained, at minimum, (i) “any inbound-only government numbers where the government entity has requested the number be included” and (ii) “private inbound-only numbers that have been used in imposter scams, when a request is made by the private entity assigned such a number.”

The Calling Report and Order would also extend the current gateway and originating provider obligation to block suspicious call traffic upon FCC notification to intermediate and terminating providers. Additionally, it would also establish a new $11,000 base penalty for failure to follow the FCC’s “know your customer” rules.

Finally, the Calling Report and Order would affirm that Session Initiation Protocol (SIP) code 603+ is the appropriate SIP code that providers must return to callers when calls are blocked due to analytics-based call blocking.

Texting Report and Order

Likewise, the draft Texting Report and Order follows up on the FCC’s December 2023 Second Further Notice of Proposed Rulemaking and would impose new text message blocking obligations on originating providers. In addition, the Texting Report and Order requires carriers to offer e-mail-to-text service on only an opt-in basis or stop offering this service altogether. Under the Texting Report and Order, originating providers would be required to begin blocking outbound text traffic following FCC notification, and where the originating provider did not do so, the FCC would require intermediate and terminating providers to block traffic from that originating provider.

Unlike the current rules for terminating providers, where the FCC may require blocking text traffic from a specific phone number, the Texting Report and Order would require originating providers to block traffic from a specific “source.” In practice, this means that if the rules are adopted as drafted, originating providers may be required to block text traffic from multiple phone numbers assigned to a single customer when directed by the FCC. Under the draft rules, an originating provider could avoid having to block text traffic even when notified by demonstrating either that (i) the identified texts are not illegal or (ii) it reasonably believes that the source is no longer originating illegal texts or that particular texts originating from the source are lawful and has notified the FCC’s Enforcement Bureau of the basis of its reasonable belief.

Outstanding Issues

As drafted, the Report and Order declines to act on several outstanding call and text blocking issues. In particular, the FCC would decline to mandate that the terminating providers offer analytics-based call blocking to customers. Similarly, the FCC would decline to require the display of caller name information where a provider indicates on a consumer device that the caller ID has been authenticated (for example, by STIR/SHAKEN). The FCC would also not adopt a requirement that providers block text messages based on reasonable analytics, as they must do with phone calls. And finally, the FCC declined to impose authentication and traceback requirements, as it does for calling on text messages, although it seeks additional comment on this proposal. Despite choosing not to act on these issues at this time, the FCC would note that it will continue to monitor illegal robocalling and whether any of these rule changes would further reduce the number of illegal robocalls and texts, stating that it may act on these proposals at a later date.

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