Telephone and Texting Compliance News: Regulatory Update — Robocalling Proceedings Potentially Impacted by Regulatory Freeze

On January 20, 2025, President Trump issued an executive order directing all “executive departments and agencies” to pause any currently pending proceedings and review any proposed or adopted rules that have not yet taken effect. Specifically, the executive order directs covered agencies to (1) refrain from “propos[ing] or issue[ing] any rule in any manner, including by sending a rule to the Office of the Federal Register (the “OFR”)” until an official appointed by President Trump has reviewed and approved the rule; (2) immediately withdraw any rules that have been sent to the OFR but that have not yet been published; (3) consider postponing for 60 days from January 20, 2025 any rules that have been published but have not yet taken effect.

Because the executive order does not define “executive departments and agencies” and the Federal Communications Commission (FCC) is considered an “independent agency,” it is not clear whether the executive order applies to the FCC. However, prior administrations have issued similar executive orders and presidential memoranda, which the FCC has voluntarily followed. New FCC Chairman Brendan Carr appears likely to take actions consistent with the executive order.

While slowing regulatory activity generally, the executive order could more specifically impact certain regulatory actions taken by the previous administration by directing the new administration to review those proceedings and ultimately modify the rules, delay their effectiveness, or stop them altogether (or allow them to proceed as is). The types of regulatory actions covered by the executive order are wide-ranging and include “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation.” Notably, the executive order covers Notices of Proposed Rulemaking and “guidance documents” – i.e., any statement of “general applicability and future effect that set forth a policy on statutory, regulatory or technical issue or an interpretation of a statutory or regulatory issue.”

At least three TCPA- and TRACED Act-related actions appear to fall within the scope of the executive order. Below is a list of those proceedings.

• Call Authentication Trust Anchor, Eighth Report and Order. The FCC adopted this Report and Order on November 21, 2024, but it has not yet been published in the Federal Register and, therefore, may be subject to withdrawal and review. As we reported in November, this Report and Order allows voice service, intermediate, and gateway providers to use third parties to perform the technological act of “signing” calls on behalf of the provider. The new rules require providers to meet two conditions to take advantage of third-party authentication: (i) the provider with the STIR/SHAKEN obligation must make all “attestation-level” decisions consistent with the STIR/SHAKEN technical standards, and (ii) all calls “signed” by the third party must use the service provider’s Service Provider Code (SPC) token and digital certificate.
• Improving the Effectiveness of the Robocall Mitigation Database, Report and Order. This Report and Order was adopted by the FCC on December 30, 2024, and released on January 8, 2025, but has not yet been published in the Federal Register and, therefore, may be subject to withdrawal and review. This Report and Order modifies the procedures that voice service, intermediate, and gateway providers must follow when submitting, updating, and maintaining their Robocall Mitigation Database (RMD) certifications. The Report and Order also established a higher base forfeiture amount for filers who submit false or inaccurate information in their RMD filings and imposed a $100 filing fee for initial and subsequent annual RMD filings.
• Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order and Further Notice of Proposed Rulemaking. This Report and Order and Further Notice of Proposed Rulemaking was adopted in February 2024, and published in the Federal Register on October 11, 2024. However, the rules adopted by the Report and Order are not effective until April 11, 2025. In particular, as we reported in March, the Report and Order adopted rules that codify previous FCC decisions that allow consumers to revoke their consent, including prior express written consent, to receive calls or texts using “any reasonable means” and clarifies the meaning of “reasonable” in this context. The Report and Order also adopted rules requiring callers and texters to honor do-not-call requests or consent revocations “as soon as practicable” but no longer than 10 days. Because these rules have not yet “taken effect” under the executive order, they may be subject to additional comment and review, and their effective date may be delayed.

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