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Legal Underpinnings Change

FCC Made Numerous Changes to Robotext Order; Stir/Shaken Order Little Changed

An FCC robotexting order approved Thursday (see 2303160061) and posted Friday interjects a changed focus from “unwanted” text messages to “potentially harmful” and “unlawful” texts. Officials said Thursday the order included “minor” tweaks addressing changes sought by Commissioner Brendan Carr and industry. CTIA was able to get several changes it sought, based on a side-by-side comparison. Commissioners made few changes to a Stir/Shaken order, also released Friday.

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The robotext order now says it addresses “certain text messages that are highly likely to be illegal” rather than “unwanted and illegal” messages. Similar changes are made throughout the final order. Saying this action "is a necessary first step to protect all wireless consumers” was changed to “this action will help to ensure that all wireless consumers receive the same protections.” The FCC deleted draft language saying the rules adopted “are a targeted first step.”

A requirement for carriers to provide a “single point of contact” was changed to “points of contact.” The language changes similarly in a section on the need for a point of contact. CTIA sought the change in a recent ex parte filing (see 2303080034), the final order acknowledges.

In order to ensure the effectiveness of this requirement as a means of curing blocking of legitimate text messages, we adopt certain safeguards to protect providers from unscrupulous texters,” says new language: “We require that providers need only accept blocking complaints from senders that can provide documented, objective evidence of blocking. We agree with CTIA that, without this restriction, unscrupulous texters could flood the points of contact with bogus claims of erroneous blocking and thus divert focus from legitimate blocking concerns.”

The FCC said it also agreed with CTIA that “entities other than mobile wireless providers” can be responsible for blocking: “We therefore give providers flexibility to either establish their own point of contact or to require their aggregator partners and blocking contractors to establish such a point of contact, which we would expect could resolve the blocking more quickly than the provider.”

The Professional Associations for Customer Engagement (PACE) fared less well on the tweaks it sought on the do-not-originate list that’s part of the rules (see 2303130049). “PACE does not identify why our current approach for DNO lists is flawed and thus how its proposal would correct a problem,” the FCC said.

Also tweaked, a section on FCC legal authority to issue the rules. The FCC no longer claims “ample” authority to act or asserts authority under Section 251(e) of the Telecom Act, the subject of two paragraphs in the draft. CTIA had questioned that claim.

We find that we have legal authority to require providers to block certain text messages originating from [North American numbering plan] numbers and to require blockers to establish a point of contact for receiving and resolving blocking complaints” and “authority under the Truth in Caller ID Act to adopt a blocking requirement,” the order says. The FCC also asserted authority in Title III of the Communications Act.


The Stir/Shaken final order largely tracks the draft, based on a comparison. USTelecom and Incompas were among those seeking changes to the robocall draft (see 2303140062).

The FCC addresses concerns raised by industry. “USTelecom requests that the Commission clarify that non-gateway intermediate providers be deemed in compliance with their authentication obligations if they enter into contractual provisions with originating providers and such providers represent and warrant that they do not originate any unsigned traffic and thereafter ‘have no reason to know, and do not know, that their upstream provider is sending unsigned traffic it originated,’” says a footnote in the order: “We decline to do so, finding that such a clarification is unnecessary. If a nongateway intermediate provider were to claim that it has complied with the authentication obligation that we adopt today pursuant to terms of a contract with an originating provider, the Commission would evaluate such a claim on a case-by-case basis.”

The FCC also declined to adopt an Incompas proposal to “exempt formal actions and investigations accompanied by findings of actual or suspected wrongdoing that rely ‘solely’ on tracebacks from the disclosure requirement we adopt today,” says another footnote. “When a formal action or investigation based solely on traceback requests is accompanied by findings of actual or suspected wrongdoing made by the Commission, law enforcement, or a regulatory agency, disclosure of that information may be useful in evaluating claims made by providers in their mitigation program descriptions and identifying potential violations of our rules.”

The FCC rejected an Incompas proposal to seek further comment on the requirement to file a description of relevant actions or investigations. The FCC also didn’t adopt PACE’s proposal to provide a list of reasons why a provider’s filing might be facially deficient and specific steps it must take in response to avoid removal. “It is not practical to provide an exhaustive list of all potential examples of facially deficient filings and methods to cure such deficiencies,” the agency said.