IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Insurance Marketing Coalition Limited, Petitioner, v. No. 24-10277 FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. On Petition for Review of an Order of the Federal Communications Commission RESPONDENT FEDERAL COMMUNICATIONS COMMISSION’S OPPOSITION TO MOTION FOR STAY PENDING REVIEW The Federal Communications Commission opposes Petitioner’s motion for a stay, pending review, of portions of an FCC order that will not take effect before January 27, 2025. See Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls, FCC 23-107, CG Docket Nos. 21-402, 02-278, 17-59 (Dec. 13, 2023) (“Order”) (Mot. Ex. C). INTRODUCTION The Order on review is the most recent of the FCC’s long-running efforts to protect consumers from unwanted automatically dialed and prerecorded telephone calls (“robocalls”) and texts (“robotexts”). Under the Telephone Consumer Protection Act of 1991 (“TCPA” or “Act”), Pub. L. No. 102-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227), such calls may not be placed without the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii), (B). The FCC is charged with prescribing regulations to implement this and other requirements of the Act. See id. § 227(b)(2). Since 2012, the FCC has required that “express consent” for most categories of telemarketing robocalls be made in writing. See 47 C.F.R. § 64.1200(f)(9). But in recent years, that rule has failed to protect consumers from a flood of “unwanted texts and calls when [they] visit comparison shopping websites” run by lead generators. Order ¶ 2. A consumer visiting such a website might click a single box and, without realizing it, “consent” to robocalls and robotexts from hundreds or thousands of the lead generator’s “marketing partners” across a wide range of unrelated businesses. Id. ¶ 32. - 2 - The Order under review addresses this problem by updating Section 64.1200(f)(9) of the Commission’s rules to close the “lead generator loophole.” Order ¶ 30. To provide lead generators and their clients “ample time” to prepare, the revised rule will not take effect before January 27, 2025. Id. ¶ 46; see id. n.113. But once the rule does take effect, robocalls and robotexts that require express written consent will no longer be allowed unless a called party gives advertiser-specific “one- to-one consent,” id. ¶ 31, and the telemarketing in question is “logically and topically related” to the website where consent is obtained, id. ¶ 36. Petitioner Insurance Marketing Coalition (“IMC”), which represents lead generators in the insurance industry, seeks a stay pending judicial review of the FCC’s revised written consent rule. But as we show, the Commission’s reasonable definition of “express consent” is fully consistent with the statutory text and Congress’s intent, aligns with consumers’ expectations, and ensures consent is informed. And because the Commission’s narrowly tailored regulation of commercial speech furthers a substantial government interest in protecting consumer privacy, the Order also comports with the First Amendment. IMC thus has not shown any likelihood of success on the merits. Nor has IMC adequately substantiated its various theories of irreparable harm. In any - 3 - event, the claimed injuries to IMC’s members are far outweighed by the government’s vital interest in protecting consumers from intrusive and unwanted telemarketing. BACKGROUND A. Statutory and Regulatory Background “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2343 (2020). Congress enacted the TCPA in 1991 because it found “[m]any consumers are outraged over the proliferation of intrusive, nuisance [telemarketing] calls to their homes,” which they “rightly regarded…as ‘an invasion of privacy.’” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (quoting the TCPA § 2, 105 Stat. at 2394 (bracketed alterations in original)); see Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1264–65 (11th Cir. 2019). Among other restrictions, the TCPA generally forbids calls made “using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone without the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). The same consent requirement applies for calls to residential lines made “using an artificial or prerecorded voice.” Id. § 227(b)(1)(B). The FCC generally refers to - 4 - these communications as “robocalls” (or “robotexts” when delivered by text). See Order ¶ 8 & n.14. The TCPA does not define “express consent,” but directs that the Commission prescribe implementing regulations. 47 U.S.C. § 227(b)(2). In 2012, the FCC interpreted “express consent” in the TCPA to require express written consent for telemarketing robocalls. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd 1830, 1838 ¶ 20 (2012) (2012 Order). The FCC adopted this requirement in order to “reduce the opportunities for telemarketers to place unwanted or unexpected calls to consumers,” and “reduce the chance of consumer confusion in responding orally to a telemarketer’s consent request.” Id. ¶ 24. By contrast, the Commission determined in the 2012 Order that it would not require written consent for informational, non-telemarketing robocalls—e.g., messages from non-profit and political organizations, or calls providing information about credit card fraud or school closings. See 2012 Order ¶ 21. In the agency’s judgment, requiring written consent for such calls would “unnecessarily impede” access to “information that consumers find highly desirable.” Id. ¶ 29. - 5 - B. Proposed Rulemaking and the Lead Generator Loophole Despite the FCC’s rulemaking in 2012, intrusive, unwanted, and often illegal robocalls and robotexts continued to proliferate. See Order ¶¶ 5–7, 30 & n.68, 31 & n.72; see also Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 38 FCC Rcd 2744, 2746 ¶ 6 (2023) (NPRM) (attached as Exhibit A). Between 2015 and 2020, for example, “the number of spam text messages that wireless providers blocked grew ten times,” to an estimated 14 billion. Id. In the course of adopting a number of measures to address this problem, in March 2023 the Commission sought comment on closing the “lead generator loophole” by proposing “to 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.” Id. ¶ 58.1 In doing so, the Commission sought comment 1 The agency provided as an example a lead generator that offered a “website…purport[ing] to enable consumers to comparison shop for insurance,” but that sought consumer consent for calls and texts from “partner companies.” Id. ¶ 59. The website listed these “partner companies,” however, only on a separate, hyperlinked webpage, which included companies that did not appear to offer insurance at all. Id. In - 6 - on a proposal “that prior express consent to receive calls or texts must be made directly to one entity at a time.” Id. ¶ 61. It also sought comment on “amending [its] TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page.” Id. C. The Order A wide range of commenters—including consumer groups, members of Congress, state attorneys general, and individual consumers—favored closing the lead generator loophole. Order ¶ 30; see id. nn.70, 72. For example, a group of 11 consumer advocate organizations commented that “resale of consumer data by lead generators and lead aggregators significantly contributes to the problem of illegal calls.” Id. ¶ 31. And attorneys general from 28 states (including Alabama) reported that, by “simply requesting an insurance quote” from one website, an “unwitting consumer” could “open[] the floodgates” to “thousands upon thousands” of unwanted robocalls and robotexts. Reply another example, an insurance company website listed 8,423 entities on a hyperlinked page. Id. ¶ 60. - 7 - Comments of 28 State Attorneys General, at 4 (June 6, 2023) (AG Reply Comments) (attached as Exhibit B). With the benefit of this record, the FCC concluded that “[l]ead- generated communications are a large percentage of unwanted calls and texts and often rely on flimsy claims of consent to bombard consumers with unwanted robocalls and robotexts.” Order ¶ 30; see id. n.70 (describing an example of “hundreds” of partners that consumers would “consent” to receiving calls from by asking for insurance information, and other examples with 2247 partners and “over 2000” partners). It therefore found that “new protections are necessary to stop abuse of [the agency’s] established consent requirements,” id. ¶ 30, and accordingly amended Section 64.1200(f)(9) of its rules to “[u]nequivocally requir[e] one-to-one consent” for automated telemarketing calls and thereby protect consumers from “receiving robocalls and robotexts from tens, or hundreds, of sellers—numbers that most reasonable consumers would not expect to receive.” Id. ¶ 31. The agency further required that “the content of the ensuing robotexts and robocalls must be logically and topically associated with the website where the consumer gave consent.” Id. ¶ 30 - 8 - The agency did not dispute that comparison shopping websites and lead generators may offer value to some consumers and businesses, but it recognized a need to “balance[]” that benefit against the public interest in protecting “consumers, including small businesses, from a deluge of unwanted robocalls and robotexts.” Id. ¶ 37; see id. ¶¶ 37–45. The Commission explained that no party in its notice and comment proceeding had provided specific evidence that the new rule would prevent consumers from comparison shopping. See id. ¶¶ 38–39. The Commission further observed that no party had offered “specific evidence on the potential economic impact” of the rule for lead generators or their clients. Id. ¶ 47; see id. ¶ 42. By contrast, the agency’s “analysis suggest[ed] that the harm of unwanted and illegal calls is at least $13.5 billion annually,” a problem to which lead generators and aggregators “are a significant contributor.” Id. ¶ 47. But to avoid unduly burdening comparison shopping websites, and to ensure successful compliance, the FCC provided a 12-month implementation period for the Order. See id. ¶ 46 & n.113.2 2 The revised Section 64.1200(f)(9) will be effective on the later of (1) 12 months after publication in the Federal Register, which was January 26, 2024, or (2) 30 days after Paperwork Reduction Act approval by the Office - 9 - ARGUMENT To obtain the extraordinary remedy of a stay, IMC must demonstrate that (1) it will likely prevail on the merits, (2) it will suffer irreparable harm without a stay, (3) a stay will not harm other parties, and (4) a stay will serve the public interest. Nken v. Holder, 556 U.S. 418, 434 (2009). The third and fourth factors merge where, as here, the government is the opposing party. Id. at 435. “The first two factors of the traditional standard are the most critical.” Nken, 556 U.S. at 434. A movant bears the burden of showing that both its likelihood of success on the merits and its risk of irreparable injury are not just possible, but “substantial.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (analogous test for preliminary injunction). IMC has failed to meet that burden here, or to show why any harm its members might conceivably suffer pending judicial review would outweigh the substantial public interest in abating the multibillion dollar problem “of unwanted and illegal calls” to which the lead generator loophole contributes. Order ¶ 47. of Management and Budget, which has not yet occurred. Order n.113. Thus, the revised rule can take effect no earlier than January 27, 2025. - 10 - I. IMC HAS NOT DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS A. The FCC’s consent regulation is reasonable and consistent with the statute. 1. Congress authorized the Commission to prescribe regulations to implement the TCPA, 47 U.S.C. § 227(b)(2), including the requirement of “prior express consent” for robocalls, id. § 227(b)(1)(A), (B). As IMC concedes (Mot. 11), the statute itself does not define that term. But Congress anticipated that the Commission would exercise its authority to implement this and other requirements of the TCPA, taking into account the context in which different types of telephone communications are made. Indeed, Congress expressly found that the FCC “should have the flexibility to design different rules for those types of automated or prerecorded calls that…are not considered a nuisance or invasion of privacy, or for noncommercial calls.” TCPA § 2, 105 Stat 2394, 2394; see also 47 U.S.C. §227(b)(2)(b) (directing the FCC to consider exempting non-commercial calls to residential lines that the agency finds will not interfere with consumers’ privacy rights); H.R. Rep. No. 102–317, at 16 (1991) (“non-commercial calls…are less intrusive to consumers because they are more expected”). - 11 - The revisions to Section 64.1200(f)(9) adopted in the Order are fully consistent with this statutory regime. An extensive record showed that, through lead generator websites, unsuspecting consumers can be flooded with “thousands upon thousands” of unwanted robocalls and robotexts by clicking a single consent checkbox. See AG Reply Comments at 4.3 Taking account of this “transactional context,” Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 793 (9th Cir. 2018) (internal quotation marks omitted), the Commission reasonably concluded that requiring one-to-one consent will “stop[] the practice of buried, barely visible disclosures” and instead “ensure[] that consumers consent only to sellers they wish to hear from,” Order ¶ 32. Likewise, the Commission reasonably decided that mandating a “logical[] and topical[]” connection between the commercial interaction giving rise to consent and any resulting telemarketing robocalls will protect consumers from unwittingly inviting sales communications far afield from what they might reasonably expect. Id. ¶ 36. In both cases, the FCC appropriately 3 IMC implies the FCC provided a single source as evidence for the problem addressed by the rule, Mot. 7, but the Order cited many supporting sources, including comments from 28 state attorneys general, 12 consumer advocacy groups, members of Congress, individual consumers, and telecom carriers. E.g., nn.70–72. - 12 - adapted its consent rule to align with what the record showed about consumers’ understanding of the consent they provide. 2. IMC is unlikely to prevail on its claims that the Order unlawfully redefines “express consent” in a way that conflicts with the term’s “ordinary meaning,” Mot. 11, or “simultaneously interpret[s] the same statute in two different ways,” id. 9 (internal quotation marks omitted). To begin with, IMC studiously ignores that the revisions to Section 64.1200(f)(9) adopted in the Order reflect an exercise of the agency’s statutorily conferred authority to prescribe legislative rules implementing the TCPA. Where, as here, Congress has authorized an agency to prescribe legislative rules, the agency’s “judgment that a particular regulation fits within [a] statutory constraint must be given considerable weight.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002); accord Hurlbert v. St Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1294 n.10 (11th Cir. 2006). Such a rule must be upheld unless “arbitrary, capricious, or manifestly contrary to the statute.” United States v. O’Hagan, 521 U.S. 642, 673 (1997) (quoting Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844 (1984)). - 13 - Consistent with that principle, this Court and others have repeatedly looked to FCC orders when interpreting the meaning of the TCPA—including in two cases on which IMC relies. In Gorss Motels, Inc. v. Safemark Systems, LP, 931 F.3d 1094 (11th Cir. 2019), this Court cited FCC “guidance on the meaning of express permission” and—quoting from an FCC order—determined that the “focus[]” of the Court’s inquiry should be “on whether a ‘consumer would understand that…he or she is agreeing to receive faxed advertisements.’” Id. at 1100–01 (cleaned up). Likewise, in Fober, the Ninth Circuit explained that “FCC orders and rulings show that…transactional context matters in determining the scope of a consumer’s consent to contact.” 886 F.3d at 793 (quoting Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1046 (9th Cir. 2017)); see also id. (quoting an FCC order for the proposition that “the scope of consent must be determined upon the facts of [the] situation [in which the person gave consent]” (alterations in original)). IMC is thus not likely to prevail on its claim that the FCC’s interpretation of “express consent” in the Order is inconsistent with “an ordinary interpretation of those words.” Mot. 13. One ordinary meaning of consent is a “willingness for certain conduct to occur.” Schweitzer v. Comenity Bank, 866 F.3d 1273, 1276 (11th Cir. 2017). And here, as we - 14 - have explained, the record showed that consumers should not be presumed to “willingly” invite robocalls and robotexts from hundreds or thousands of entities identified on a comparison shopping website’s hyperlinked list, particularly when the listed entities have no logical or topical connection to the website. See, e.g., Order n.69 (citing evidence that “consumers who fill out web forms may not realize they are operated by lead generators, i.e., not merchants, or may not know that this information can be sold and re-sold multiple times”). To be sure, in some contexts it may be reasonable to conclude that consumers knowingly authorize communications from unnamed “affiliates” of, or “intermediaries” for, entities with which they have direct relationships. But this Court and others have repeatedly observed when interpreting the TCPA that “the scope of consent, like its existence, depends heavily upon implications and the interpretation of circumstances.” Schweitzer, 866 F.3d at 1279 (cleaned up); see, e.g., Blow v. Bijora, Inc., 855 F.3d 793, 805 (7th Cir. 2017) (scope of consent under TCPA is “dependent on the context in which it is given” (cleaned up)); Van Patten, 847 F.3d at 1046 (“transactional context matters”); Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 343 (6th Cir. 2016) (“context of the consent…is critical”). - 15 - In both Gorss Motels and Fober (Mot. 12–13), the specific facts of the consumer transactions at issue were central. In Gorss Motels, this Court found that hotels knowingly gave “permission” for fax solicitations from affiliates of their franchisor when, in the franchise agreement, they provided their fax numbers and “expressly agreed to receive information about purchasing items from [the franchisor’s] affiliates.” 931 F.3d at 1101; see id. at 1097, 1100. And in Fober, the Ninth Circuit held that a consumer had given informed “consent” to receive a robocall assessing the quality of her medical care when, upon enrolling in her healthcare plan, she expressly authorized the plan to disclose information in her enrollment form—which included her phone number—“for purposes…of quality improvement.” 886 F.3d at 793. In that specific context, the court held, it was irrelevant that the caller had obtained the consumer’s phone number through an intermediary of the health plan; the call was for the purpose she had knowingly authorized. Id. The context here is not analogous. As the Commission explained based on an extensive record—and as common sense confirms—“most reasonable consumers would not expect to receive” telemarketing robotexts and robocalls from potentially “hundreds…of sellers” when - 16 - seeking further information by clicking on a single website link. Order ¶ 31. 3. Context similarly explains why IMC’s contention (Mot. 9) that the Commission impermissibly defined “express consent” in 47 U.S.C. § 227(b)(1)(A) “to mean two different things” is unavailing. The Commission has not adopted inconsistent definitions of the same statutory term; rather, it has instituted different regulatory requirements to prove the statutorily required consent in different sets of circumstances. The distinction between telemarketing and non-telemarketing, informational robocalls and robotexts predates the current Order. The Commission recognized this same distinction in the 2012 Order, when it interpreted the “express consent” required by Section 227(b)(1)(A) and (B) to include express written consent for telemarketing robocalls, but not for other types of automated calls. As the agency then explained, obtaining prior written consent for telemarketing would require “conspicuous action by the consumer” and so “reduce the chance of consumer confusion in responding orally to a telemarketer’s consent request.” Id. ¶ 24; see id. ¶ 25 (consumers who orally consent to service calls “do not necessarily expect” to get telemarketing calls). In the - 17 - Commission’s judgment, equivalent evidence of consent was not needed for non-telemarketing, informational calls because consumers regarded access to this information as “highly desirable” and would “serve as a disincentive to the provision of services on which consumers have come to rely.” Id. ¶ 29. Thus, the different rules governing consent that the Commission adopted in 2012 were calibrated to match consumers’ expectations. So too with the changes adopted in the Order. The updates were required to clarify consent in response to lead generation techniques that give rise to telemarketing robocalls, but there was no evidence of a similar problem with unwitting consent to non-telemarketing informational calls. Indeed, the need for one-to-one consent and the topical relation requirement arose in the telemarketing context, where lead generating websites purported to gain written consent—which is required only for telemarketing robocalls—through hyperlinked lists of marketing partners. By contrast, there was no evidence of a “lead generation” problem in connection with, for example, informational calls about school closings or credit card fraud. See 2012 Order ¶ 29 n.79. The agency thus adopted differing requirements of consent to align with consumers’ expectations. See TCPA § 2, 105 Stat 2394, 2394 (finding that - 18 - FCC “should have the flexibility to design different rules for those types of automated or prerecorded calls that…are not considered a nuisance or invasion of privacy, or for noncommercial calls”). B. The new rule does not violate the First Amendment. The prior express written consent requirement amended by the Order regulates only commercial speech, i.e., “speech proposing a commercial transaction” to which the First Amendment “accords a lesser protection.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 (1980).4 The rule is therefore subject to intermediate scrutiny: it is permissible so long as it is supported by “a substantial [government] interest” and the restrictions it imposes are “in proportion to that interest.” Id. at 564; see Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1246 (11th Cir. 2015). The Order readily satisfies this standard. IMC does not (and could not reasonably) dispute that protecting consumers from unwanted robocalls and texts is a substantial government interest. See Mot. 15; 4 The definition amended by the Order is required only for a robocall or robotext “that includes or introduces an advertisement or constitutes telemarketing,” defined as a message “advertising the commercial availability or quality of any property, goods, or services” or “encouraging the purchase or rental of, or investment in, property, goods, or services.” 47 C.F.R. § 64.1200(a)(2) & (3), (f)(1) & (13). - 19 - Barr, 140 S. Ct. at 2348 (upholding TCPA’s general restriction on robocalls based on the government’s interest in “protecting consumer privacy”); Victory Processing, LLC v. Fox, 937 F.3d 1218, 1227 (9th Cir. 2019). The Order directly advances that interest. The FCC found, based on extensive comment, that consumers were beset by robocalls resulting from lead generation websites, and that the new explicit one-to-one and topical-relation consent requirements would “stop[] the practice of buried, barely visible disclosures” and instead “ensure[] that consumers consent only to sellers they wish to hear from.” Order ¶ 32. And contrary to IMC’s suggestion that a reduction in unwanted calls “by some unknown amount” is insufficient to sustain the Commission’s rule (Mot. 16), “empirical data” are not required under the First Amendment; “history, consensus, and simple common sense” can be sufficient support. Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (cleaned up). Here, the benefits of the rule changes, the Commission found, will “accrue to millions of individuals and businesses, including small businesses.” Order ¶ 59. The Order is also narrowly tailored to protect consumers. It directly addresses the “lead generator loophole” by aligning with consumer - 20 - expectations of consent, but still allows consumers to consent to receive telemarketing robocalls from sellers they want to hear from so long as, to prevent confusion, consent is seller-specific. Order ¶ 38. The Commission likewise has not banned or unduly restricted comparison shopping websites; it simply prevents them from requiring consumers to “agree to receive robocalls or robotexts from multiple, potentially hundreds, of other callers” as a precondition “to access[ing] [comparison shopping] services.” Id. ¶ 32. The Order does not even prevent sellers from contacting consumers who have given a generalized consent to a long list of “marketing partners”—the sellers simply cannot employ robocalling or robotexting to do so. Order ¶¶ 38–39. IMC characterizes the rule as “underinclusive” because it targets only telemarketing. Mot. 15–16. But “the First Amendment imposes no freestanding ‘underinclusiveness limitation.’” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015) (citation omitted). Instead, underinclusiveness is relevant only if it is so irrational as to “raise doubts about whether the government is in fact pursuing the interest it invokes.” Id. at 448 (cleaned up). That is not the case here, where the record showed a problem with telemarketing robocalls, but no such problem with non-telemarketing calls. - 21 - IMC’s contention that the FCC failed to address less restrictive proposals in the record—such as IMC’s proposal that lead generator websites more explicitly disclose (but not substantively change) their practices—is likewise incorrect. Mot. 17. The agency cited these proposals, including IMC’s, and explained why, in the agency’s judgment, they “would not close the lead generator loophole.” Order ¶ 34; see id. n.85. Among other things, the Commission concluded those proposals would not “provide consumers with sufficient control” or “prevent the daisy-chaining of consents.” Id. ¶ 34. Although the Commission’s rule thus easily survives intermediate scrutiny, IMC argues that the rule is instead subject to strict scrutiny because the rule applies only to telemarketing calls, and so is purportedly “content-based.” Mot. 14. (citing Reed v. Town of Gilbert, Az., 576 U.S. 155, 165 (2015) (a “law that is content based on its face is subject to strict scrutiny”), and Barr, 140 S. Ct. at 2343). Under IMC’s theory, then, a law that applies only to commercial speech is subject to strict scrutiny precisely because it applies only to commercial speech. For this Court to adopt IMC’s logic would require a major departure from established commercial speech doctrine. Indeed, the Supreme Court itself recently disclaimed this reading of Reed and Barr. See City of - 22 - Austin, Tx. v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 72 (2022). As the Court explained, although one must “read or hear” a message to know if it entails a commercial solicitation, “restrictions on solicitation are not content based and do not inherently present ‘the potential for becoming a means of suppressing a particular point of view,’ so long as they do not discriminate based on topic, subject matter, or viewpoint.” Id. This Court and others have likewise recognized the continuing applicability of intermediate scrutiny in commercial speech cases. See, e.g., Recht v. Morrisey, 32 F.4th 398, 409 (4th Cir. 2022) (“Reed simply concerned a totally different context; it cannot be distorted to so unsettle the Central Hudson regime.”); Dana’s R.R. Supply, 807 F.3d at 1246 (“Content-based restrictions on…commercial…speech” receive “more leeway because of the robustness of the speech and the greater need for regulatory flexibility.”). In fact, the scope of Reed and Barr are far narrower than IMC contends. Reed involved a law that regulated and distinguished among ideological, political, and nonprofit signs—speech at the heart of the First Amendment and subject to the highest scrutiny—and the Court had no reason to discuss commercial speech. 576 U.S. at 159–61. And IMC gets Barr backwards: that case invalidated a statutory provision that - 23 - preferred one subset of commercial speech—messages concerning collection of government debts—above all other forms of commercial and noncommercial speech, including political speech. See 140 S. Ct. at 2346. The regulation at issue here, by contrast, regulates only commercial speech, without regard to the content of that speech. The Barr majority nowhere suggested that it was overruling Central Hudson, and indeed disavowed any intention “to expand existing First Amendment doctrine or to otherwise affect traditional or ordinary economic regulation of commercial activity.” Id. at 2347. Accordingly, IMC’s First Amendment challenge fails.5 II. THE REMAINING FACTORS ALSO WEIGH AGAINST A STAY. A stay pending review is not warranted without a “showing of irreparable injury,” “the sine qua non of injunctive relief.” Siegel, 234 F.3d at 1176. And as this Court has “emphasized on many occasions, the asserted irreparable injury ‘must be neither remote nor speculative, but actual and imminent.” Id. (internal quotation marks omitted). 5 For purposes of the abbreviated merits discussion in this stay opposition, we do not analyze the Commission’s rule under the plainly inapplicable framework of strict scrutiny. - 24 - IMC has not made that showing here. It has submitted a declaration that describes potential business losses from a member insurance marketer and insurer, but the vast majority of those claimed losses—including the supposed devaluation of previously generated “shared leads,” Mot. 19; see Liebergall Decl. ¶¶ 11–21—will not occur until the Commission’s revised rule takes effect next year. See above 9 & n.2. There is no reason to think this case cannot be decided in the normal course before then. Moreover, IMC fails to substantiate the magnitude of the claimed devaluation of its members’ leads, because it fails to acknowledge (e.g., Mot. 19) that such leads could still be used for live calls (not robocalls), and its supporting declarant does not clearly explain the degree to which the company’s monetization of shared leads depends on robocalling or robotexting. Any theoretical devaluation of shared leads would not be “irreparable” in any event, because IMC’s members could offset any losses by placing live calls using those leads and because, should this Court ultimately vacate the Commission’s rule, IMC’s members could resume using their shared leads as before. The declaration that IMC provides from a lead generator likewise does not adequately substantiate the claimed harms. For example, although the declarant asserts that his company has “already lost several - 25 - clients” because of the Order, Dobak Decl. ¶ 24, it is not clear how the declarant can reasonably attribute the loss of those clients to a “fear[] of…being out of compliance” with a rule that will not take effect for many months, id. Similarly, it is unclear under this declaration why IMC’s members should be expected to incur costs for updating their practices and systems any time imminently. See id. ¶ 11 (estimating the required time to create a revised system at {{ }}).6 Finally, any conceivable near-term costs of compliance with the new rule would be modest compared to the harm consumers—including small businesses—currently experience from unwanted robocalls and robotexts. Compare id. ¶ 11 (predicting costs of {{ }} to design new systems), with Order ¶ 47 (estimating annual harm from unwanted calls of at least $13.5 billion). Indeed, whatever compliance costs IMC’s members may eventually incur by changing their business practices are the necessary flip side of the benefits the revised rule will bring. The public interest therefore weighs heavily against a stay. 6 Information in double braces is material that IMC has submitted under seal as confidential. We have redacted it from the public version of this brief. - 26 - “A stay is an intrusion into the ordinary processes of administration and judicial review” and is never “a matter of right.” Nken, 556 U.S. at 427. Under all the governing factors, IMC has failed to justify its request for a stay here. CONCLUSION The motion for stay pending review should be denied. Dated: April 15, 2024 Respectfully submitted, /s/ Matthew J. Dunne P. Michele Ellison General Counsel Jacob M. Lewis Deputy General Counsel Sarah E. Citrin Deputy Associate General Counsel Matthew J. Dunne Counsel FEDERAL COMMUNICATIONS COMMISSION 45 L Street NE Washington, DC 20554 (202) 418-1740 fcclitigation@fcc.gov - 27 - CERTIFICATE OF COMPLIANCE Certificate of Compliance With Type-Volume Limitation, Typeface Requirements and Type Style Requirements 1. This document complies with the type-volume limit of Fed. R. App. P. 27(d)(2) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f): ☒ this document contains 5,169 words, or ☐ this document uses a monospaced typeface and contains lines of text. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: ☒ this document has been prepared in a proportionally spaced typeface using Microsoft Word for Office 365 in 14-point Century Schoolbook, or ☐ this document has been prepared in a monospaced spaced typeface using with . /s/ Matthew J. Dunne Matthew J. Dunne Counsel for Respondent Federal Communications Commission - 28 - CERTIFICATE OF INTERESTED PERSONS As far as we aware, the Certificate Of Interested Persons in Petitioner’s Motion for Stay is complete. /s/ Matthew J. Dunne Matthew J. Dunne Counsel for Respondent Federal Communications Commission - 29 - Exhibit A Federal Communications Commission FCC 23-21 Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Targeting and Eliminating Unlawful Text Messages ) CG Docket No. 21-402 ) Rules and Regulations Implementing the ) CG Docket No. 02-278 Telephone Consumer Protection Act of 1991 ) ) REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULEMAKING Adopted: March 16, 2023 Released: March 17, 2023 Comment Date (30 days after date of publication in the Federal Register) Reply Comment Date (60 days after date of publication in the Federal Register) By the Commission: Chairwoman Rosenworcel and Commissioner Starks issuing separate statements. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION...................................................................................................................................1 II. BACKGROUND.....................................................................................................................................6 III. REPORT AND ORDER........................................................................................................................13 A. Mandatory Blocking of Texts that are Highly Likely to be Illegal.................................................16 B. Point of Contact ..............................................................................................................................27 C. Other Proposals...............................................................................................................................32 D. Legal Authority...............................................................................................................................38 E. Cost-Benefit Analysis .....................................................................................................................43 IV. FURTHER NOTICE OF PROPOSED RULEMAKING......................................................................48 A. Block Texts Upon Commission Notification..................................................................................50 B. Text Message Authentication and Spoofing ...................................................................................54 C. Clarifying Do-Not-Call Protections for Text Messages .................................................................55 D. Closing the Lead Generator Loophole............................................................................................58 E. Digital Equity and Inclusion ...........................................................................................................63 F. Legal Authority...............................................................................................................................64 V. PROCEDURAL MATTERS.................................................................................................................66 VI. ORDERING CLAUSES........................................................................................................................76 APPENDIX A—FINAL RULES APPENDIX B—LIST OF COMMENTERS APPENDIX C—PROPOSED RULES APPENDIX D—FINAL REGULATORY FLEXIBILITY ANALYSIS APPENDIX E—INITIAL REGULATORY FLEXIBILITY ANALYSIS Federal Communications Commission FCC 23-21 I. INTRODUCTION 1. Text messaging is among our most popular forms of communication, quickly connecting people to friends and family, businesses to customers, and governments to constituents. However, with that popularity comes unique risks. On many devices, consumers can immediately see some or all of these messages, potentially piquing their interest and enticing them to open the message. Data shows consumers read nearly all texts, and do so nearly immediately; whereas calls from unknown callers are often ignored by consumers. While some text messages may present similar problems as unwanted calls—they invade consumer privacy and are vehicles for consumer fraud and identity theft1—they also present harms beyond robocalls that can exacerbate the problem of such scams. Text message-based scams can include links to well-designed phishing websites that appear identical to the website of a legitimate company and can fool a victim into providing personal or financial information. Texted links can also load unwanted software onto a device, including malware that steals passwords, credentials, or other personal information. We are therefore, for the first time, requiring all mobile wireless providers to block certain text messages that are highly likely to be illegal, so that all subscribers have a basic level of protection.2 This action will help to ensure that all wireless consumers receive the same protections, regardless of which mobile wireless provider they use to receive SMS and MMS messages. 2. Mobile wireless providers and others have taken steps to protect consumers from potentially harmful text messages; nevertheless, unlawful text messaging is trending in the wrong direction. One source, for example, reports that consumer losses from scam texts were $231 million for the first three quarters of 2022, up from $86 million for all of 2020. The time is therefore right for us to take steps to protect consumers. 3. In this Report and Order, we take Commission action to require mobile wireless providers to block certain robotext messages3 that are highly likely to be illegal.4 Building on our call blocking work, we require mobile wireless providers to block—at the network level—texts purporting to be from North American Numbering Plan (NANP)5 numbers on a reasonable Do-Not-Originate (DNO)6 1 The scope of our decision here is text messaging originating from NANP numbers that use the wireless networks, e.g., Short Message Service (SMS) and Multimedia Messaging Service (MMS), not over-the-top (OTT) messaging, such as iMessage and WhatsApp or Rich Communications Services (RCS). See 47 CFR § 64.1600(o) et seq. 2 Commenters share this goal of protecting consumers from illegal text messages. NCLC/EPIC Joint Reply at 1. 3 Texting (SMS and MMS) is not a common-carrier service. Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, WT Docket No. 08-7, Declaratory Ruling, 33 FCC Rcd 12075, 12082-12089, paras. 17-32 (2018) (Messaging Declaratory Ruling), recon. pending, Rept. No. 3011 (Feb. 5, 2019). SMS and MMS wireless messaging services are not the functional equivalent of commercial mobile services (CMRS). Messaging Declaratory Ruling, 33 FCC Rcd at 12093, para. 37. 4 Targeting and Eliminating Unlawful Text Messages, CG Docket No. 21-402, Notice of Proposed Rulemaking, FCC 22-72, 2022 WL 4545905 (2022) (NPRM). The list of comments, replies, and ex parte filings is in Appendix B. We use “robotexts” to include text messages that may be legal or illegal. Some robotext messages are both legal and wanted, just as some robocalls are legal and wanted. Text messages may be illegal because they violate the Telephone Consumer Protection Act, such as by being made with an autodialer and being sent without the necessary consent, because the number displayed is illegally spoofed, which violates the Truth in Caller ID Act, or for other reasons, particularly if they are fraudulent. 5 The “North American Numbering Plan” is the basic numbering scheme for the telecommunications networks located in American Samoa, Anguilla, Antigua, Bahamas, Barbados, Bermuda, British Virgin Islands, Canada, Cayman Islands, Dominica, Dominican Republic, Grenada, Jamaica, Montserrat, Saint Maarten, St. Kitts & Nevis, St. Lucia, St. Vincent, Turks & Caicos Islands, Trinidad & Tobago, and the United States (including Puerto Rico, the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands). 47 CFR § 52.5(d). 6 The Commission explained in the 2017 Call Blocking Report and Order that calls from a DNO list, i.e., purporting to be from a telephone number that the subscriber did not consent to being used for outgoing calls, are very likely fraudulent and in violation of the Commission’s anti-spoofing rule, and therefore, no reasonable consumer would (continued….) 2 Federal Communications Commission FCC 23-21 list, which include numbers that purport to be from invalid, unallocated, or unused numbers, and NANP numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked. At the same time, we take steps to ensure that any erroneous blocking can be quickly remedied by requiring providers and other entities to maintain a point of contact for texters to report erroneously blocked texts. 4. We also propose a set of additional protections that could further stem the tide of illegal text messages. We propose to require terminating providers to block texts from a sender after they are on notice from the Commission that the sender is sending illegal texts, to extend the National Do-Not-Call Registry’s protections to text messages, and to ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer, based on one consent. 5. We anticipate that the rules we adopt here will result in fewer illegal text messages to consumers. II. BACKGROUND 6. The Illegal Text Problem. Illegal robotext messages present the same problems as illegal robocalls—beyond nuisance, they invade a consumer’s privacy and are vehicles for fraud.7 Commission data show that consumers are receiving increasing numbers of these types of text messages.8 The Commission’s Consumer Advisory Committee (CAC)9 recently reported that bad actors use a variety of tactics to commit fraud using text messages.10 According to CTIA, between 2015 and 2020, while the total volume of text messages roughly doubled, the number of spam text messages that wireless providers blocked grew ten times, from an estimated 1.4 billion in 2015 to 14 billion in 2020.11 The App Association observes that automated text messages have jumped nationally from 1 billion in July 2021 to 12 billion in June 2022.12 This commenter also observes that illegal texts impose significant harm to (Continued from previous page) wish to receive such a call. See Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, WC Docket No. 17-97, Report and Order and Further Notice of Proposed Rulemaking, 32 FCC Rcd 9706, 9710, para. 10 (2017) (2017 Call Blocking Report and Order). The rules we adopt in this Report and Order define the group of numbers that shall be on a “reasonable DNO list.” See infra para. 13. We do not require mobile wireless providers to use the same reasonable DNO list for purposes of our text message blocking rules as they use for purposes of our call blocking rules. “Reasonable” for these purposes is determined in the context of text messaging only. However, a list so limited in scope that it leaves out obvious numbers that could be included with little effort may be deemed unreasonable. 7 For more information on how to avoid or report unwanted calls and texts, see FCC, Consumer Guides, Stop Unwanted Robocalls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts (last visited Dec. 19, 2022); Federal Trade Commission, Consumer Advice, How to Recognize and Report Spam Text Messages, https://consumer.ftc.gov/articles/how-recognize-and-report-spam-text-messages (last visited Feb. 2, 2023). 8 Since 2015, the Commission has seen a more than 500% increase in unwanted text complaints, from approximately 3,300 in 2015 to 18,900 in 2022. 9 The CAC is a committee that makes recommendations to the Commission regarding consumer issues within the jurisdiction of the Commission and facilitates the participation of all consumers in proceedings before the Commission. FCC, Consumer Advisory Committee, About CAC, https://www.fcc.gov/consumer-advisory- committee (last visited Jan. 18, 2023). 10 FCC, Consumer Advisory Committee, Report on the State of Text Messaging at 11-12 (2022) (CAC Report). 11 CTIA Comments at 2. 12 The App Association Reply at 2, citing Daisy Gonzalez-Perez, Rise of the robotexts: As new rules curbed spam calls, texts took off, Cronkite News, (July 21, 2022), https://cronkitenews.azpbs.org/2022/07/21/rise-of-the- robotexts-as-new-rules-curbed-spam-calls-texts-took-off. 3 Federal Communications Commission FCC 23-21 consumers, particularly for aging Americans struggling with digital literacy.13 Robokiller reports 47.2 billion spam texts were sent in November 2022 alone.14 Consumer comments filed in this proceeding also describe personal experiences with unwanted and scam texts.15 And consumer groups note that, according to the Federal Trade Commission (FTC), consumers have reported greater losses, at $231 million, from text message scams in the first three quarters of 2022 than in all of 2020 and 2021 combined.16 Robokiller projects a 179% increase in the dollars lost from text messages between 2021 and 2022.17 7. In their schemes, text scammers exploit emergencies such as the COVID-19 pandemic and natural disasters, along with other important topics that grab consumers’ attention such as student loans and unemployment insurance.18 Illegal texts can include links to phishing19 websites that appear to be the website of a legitimate company and deceive the victim into providing personal or financial information.20 Reports indicate that “smishing” fraud increased by 700% last year.21 The potential harm 13 The App Association Reply at 2. 14 See Robokiller, United States Spam Text Trends, 2022 United States Robotext Trends, https://www.robokiller.com/spam-text-insights (last visited Dec. 19, 2022). 15 See, e.g., Omoigui Express Comment (receiving scam text messages from unknown numbers with “Hi” or with a link, claiming to be a company like Amazon or CVS reaching out with a gift card); Anna K. Comment at 1; Boyd Express Comment; Hillenburg Comment at 1; Schmidt Comment at 1 (“I am in support of the proposed rule. I am tired of receiving weird, questionable, and risky texts.”). 16 NCLC/EPIC Joint Reply at 5, citing FTC, Consumer Sentinel Network, Fraud Reports, https://public.tableau.com/app/profile/federal.trade.commission/viz/FraudReports/FraudFacts (adding the first three quarters of 2022, totaling $231M; the total for 2021 was $131M, and for 2020 was $86M) (last visited Feb. 2, 2023). 17 NCLC/EPIC Joint Reply at 5, citing Robokiller, The Robokiller Report, 2022 Mid-Year Phone Scam Insights, https://www.robokiller.com/the-robokiller-report (last visited Feb. 2, 2023). 18 See, e.g., FCC, COVID-19 Text Scams, https://www.fcc.gov/covid-19-text-scams (last visited Sept. 26, 2022); FCC, Fear Fuels COVID-19 Contact Tracing Scams, https://www.fcc.gov/fear-fuels-covid-19-contact-tracing- scams (last visited Dec. 21, 2022); FCC, Consumer Alert, Scam Robotexts are a Rising Threat, (Jul. 28, 2022), https://www.fcc.gov/robotext-scams-rise; FCC, Consumer Guides, Stop Unwanted Robocalls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts (last visited Dec. 19, 2022); Federal Trade Commission, Consumer Advice, How to Recognize and Report Spam Text Messages, https://consumer.ftc.gov/articles/how-recognize-and-report-spam-text-messages (last visited Feb. 2, 2023); Department of Justice, Federal Bureau of Investigations, Cyber Division, Cyber Criminals Create Fraudulent Cryptocurrency Investment Applications to Defraud US Investors, (Jul. 18, 2022), https://www.ic3.gov/Media/News/2022/220718.pdf; Internal Revenue Service, News Releases, IRS Reports Significant Increase in Texting Scams; Warns Taxpayers to Remain Vigilant, (Sept. 28, 2022), https://www.irs.gov/newsroom/irs-reports-significant-increase-in-texting-scams-warns-taxpayers-to-remain-vigilant; NBC News, Kevin Collier, Odd Text from a Wrong Number? It’s Probably a Scam, (Jul. 29, 2022), https://www.nbcnews.com/tech/security/wrong-number-text-scam-rcna39793; WMC Global Comments at 4 (Millions of consumers are receiving links to phishing websites and phishing messages purportedly from their state’s workforce agency in an extensive and far-reaching campaign targeting U.S. consumers.). 19 WMC Global Comments at 2 (The most significant cyber threats to mobile users revolve around compromising their personal information, often through brand impersonation or phishing. SMS phishing—commonly referred to as “smishing”—is an extremely effective method and scammers are learning just how simple and profitable it is.). “Smishing” is a term that combines SMS and phishing. Scammers use smishing to target consumers with deceptive text messages sent to their smart devices. FCC, Avoid the Temptation of Smishing Scams, https://www.fcc.gov/avoid-temptation-smishing-scams (last visited Feb. 8, 2023). 20 See, e.g., Federal Trade Commission, Consumer Advice, How to Recognize and Avoid Phishing Scams, https://consumer.ftc.gov/articles/how-recognize-and-avoid-phishing-scams (last visited Dec. 21, 2022); AT&T, Cyber Aware, Text Message Scams, https://about.att.com/pages/cyberaware/ni/blog/text scams (last visited Dec. 21, 2022); Verizon, Smishing and Spam Text Messages, https://www.verizon.com/about/account-security/smishing-and- (continued….) 4 Federal Communications Commission FCC 23-21 from illegal texts is more than just economic in nature; fraudulent, misleading texts can also erode trust in our country’s political and campaign infrastructure.22 Scam links can load malware onto phones that steals passwords and other credentials.23 WMC Global explains that account takeover is one of the most prevalent methods used to deliver phishing attacks to consumers.24 In perpetrating these attacks, a scammer can use a stolen application programming interface (API) key assigned to a legitimate business to send SMS phishing messages to victims.25 8. Commission Action on Call Blocking. The Commission has adopted call blocking26 rules to address illegal and unwanted robocalls. Since 2017, the Commission has authorized voice service providers to block certain calls without consumers’ consent.27 In 2017, the Commission authorized voice service providers to block, at the network level, calls purporting to be from invalid, unallocated, or unused NANP numbers, and numbers on a DNO list.28 In 2019, it clarified that voice service providers may offer call blocking services on an opt-out basis to new and existing customers, and that such services may block calls where the blocking is based on reasonable analytics designed to identify unwanted calls.29 In the Call Blocking Third Report and Order, the Commission enabled additional voice service provider blocking, establishing two safe harbors from liability under the Communications Act and the Commission’s rules for erroneous call blocking.30 Subsequently, the Commission expanded one of those safe harbors, allowing terminating voice service providers to block calls at the network level, without consumer consent, if that blocking is based on reasonable analytics that incorporate caller ID authentication information designed to identify calls and call patterns that are highly likely to be illegal.31 (Continued from previous page) spam-text-messages (last visited Dec. 21, 2022). See WMC Global Comments at 2 (During the COVID-19 pandemic, scammers began leveraging phishing kits, i.e., back-end source code packages used to launch phishing attacks, to defraud both U.S. citizens and government agencies out of unemployment payments.) 21 Infobip Reply at 2-3, citing Weston Sabina. “Smishing attacks increased 700% in first six months of 2021,” ITPro, (Sept. 14, 2021), https://www.itpro.co.uk/security/scams/360873/smishing-attacks-increase-700-percent- 2021. 22 Campaign Verify Comments at 3. 23 Public Knowledge Reply at 2. 24 WMC Global Comments at 3. 25 Id. The API keys are typically stolen through data breaches, business email compromise, and insider threats. Id. 26 Call blocking is “stopping calls outright so that they do not ring a phone, routing the calls directly to voicemail without ringing the phone, or some other treatment, such as interactive voice response session or voice call screening.” Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, WC Docket No. 17-97, Declaratory Ruling and Third Further Notice of Proposed Rulemaking, 34 FCC Rcd 4876, 4884 n.47 (2019) (2019 Call Blocking Declaratory Ruling). 27 2017 Call Blocking Report and Order, 32 FCC Rcd at 9710-21, paras. 10-40; 2019 Call Blocking Declaratory Ruling, 34 FCC Rcd at 4886-88, paras. 33-34; 47 CFR § 64.1200(k)(1), (2). 28 2017 Call Blocking Report and Order, 32 FCC Rcd at 9710-21, paras. 10-40. Phone numbers that are only used by their subscribers to receive inbound calls can be placed on a DNO list. Id. at 9710, para. 10. 29 2019 Call Blocking Declaratory Ruling, 34 FCC Rcd at 4886-88, paras. 33-34. 30 Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, Third Report and Order, Order on Reconsideration, and Fourth Further Notice of Proposed Rulemaking, 35 FCC Rcd 7614, 7623-31, paras. 20-45 (2020) (Call Blocking Third Report and Order). The first of these safe harbors protects terminating voice service providers that block calls based on reasonable analytics, including caller ID authentication information, designed to identify unwanted calls so long as the consumer is given the opportunity to opt out. Id. at 7625-27, paras. 25-34. The second safe harbor protects any voice service provider that blocks calls from a bad-actor upstream voice service provider that fails to effectively mitigate illegal traffic when notified of such traffic by the Commission. Id. at 7627-31, paras. 35-45. 5 Federal Communications Commission FCC 23-21 The Call Blocking Fourth Report and Order also required voice service providers to take steps to stop illegal traffic on their networks and assist the Commission, law enforcement, and the industry traceback consortium32 in tracking down callers that make such calls.33 9. The Commission expanded these rules further last year in the Gateway Provider Order, making its previously permissive blocking policy mandatory in certain circumstances.34 That Order, among other things, required gateway providers to block calls based on any reasonable DNO list, block illegal traffic upon Commission notification, respond to traceback requests within 24 hours, and adopted a know-your-upstream-provider policy for gateway providers.35 10. The TCPA and Do-Not-Call. In addition to the rules described above, the Commission has other protections for consumers, specifically in the Telephone Consumer Protection Act (TCPA)36 and the Do Not Call (DNC) rules. For example, certain calls and texts sent using an automatic telephone dialing system and calls made using a prerecorded or artificial voice to mobile telephone numbers require consumer consent.37 In 2015, the Commission also clarified that Internet-to-phone text messages, which are sent via the Internet to a mobile wireless provider and then routed to a consumer’s phone over the provider’s wireless network, are also covered by the TCPA’s protections.38 11. The Commission’s DNC rules also protect consumers from unwanted telephone solicitations or telemarketing calls to wireless and wireline phones when the consumer has added their (Continued from previous page) 31 Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, Fourth Report and Order, 35 FCC Rcd 15221, 15236, at para. 42 (2020) (Call Blocking Fourth Report and Order). The Commission made clear that this blocking must be managed “with human oversight and network monitoring sufficient to ensure that the blocking works as intended,” which “must include a process that reasonably determines that the particular call pattern is highly likely to be illegal prior to blocking calls that are part of that pattern.” Id. at 15234-5, 15236, paras. 39, 42-43. 32 The current industry traceback consortium is the Industry Traceback Group (ITG), which is a group of voice service providers, wireline, wireless, and VoIP, that are tracing and identifying the source of illegal robocalls. See ITG, https://tracebacks.org (last visited Dec. 21, 2022). 33 Call Blocking Fourth Report and Order, 35 FCC Rcd at 15226-27, para 13. See 47 CFR § 64.1200(n)(2). In our Further Notice of Proposed Rulemaking we are seeking comment on extending to text messages the existing requirement that voice service providers take steps to effectively mitigate illegal traffic when a voice service provider receives actual written notice of such traffic from the Commission. 34 Advanced Methods to Target and Eliminate Illegal Robocalls, CG Docket No. 17-59, WC Docket No. 17-97, Sixth Report and Order in CG Docket No. 19-59, Fifth Report and Order in WC Docket No. 17-97, Order, Seventh Further Notice of Proposed Rulemaking in CG Docket No. 17-59 & Fifth Further Notice of Proposed Rulemaking in WC Docket No. 17-97, 2022 WL 1631842 at paras. 74-86, FCC 22-31 (rel. May 20, 2022) (Gateway Provider Report and Order). 35 See 47 CFR §§ 64.1200 (k)(5), (k)(6), (n)(1), (f)(19), (n)(4), (n)(5), (n)(6), (o), (p). 36 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14115, para. 165 (2003) (2003 TCPA Order). The DNC rules apply to calls to wireline and wireless phones. Id. at 14115-16, paras. 165-66. 37 47 U.S.C. § 227(b)(1)(A). In the Facebook v. Duguid decision, the Supreme Court clarified that “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 1171 (2021) (Facebook). The Commission made clear in 2003 that “calls” include text messages to wireless numbers including, for example, SMS calls, provided the call is made to a telephone number assigned to such service. 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165. 38 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 30 FCC Rcd 7961, 8019-20, para. 113-15 (2015) (2015 TCPA Declaratory Ruling and Order). 6 Federal Communications Commission FCC 23-21 wireline or wireless number to the National DNC Registry.39 DNC rules state that telemarketers, subject to certain exceptions,40 are prohibited from initiating any telephone solicitation to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations”;41 this rule also applies to wireless telephone numbers.42 Yet, while the Commission included both wireless and wireline numbers in the DNC protections, it has not explicitly included text messages in the DNC rules.43 12. Text Blocking Notice of Proposed Rulemaking. In the NPRM, we proposed to protect consumers from the increasing numbers of illegal text messages by extending to text messages some of the consumer protections that have been successful against illegal voice calls.44 We proposed to adopt a rule requiring mandatory blocking of texts that purport to be from numbers on a reasonable DNO list. We also sought comment on whether to adopt a requirement that mobile service providers maintain a single point of contact for senders to report erroneously blocked texts. We also sought comment on the extent to which spoofing45 is a problem with regard to text messaging and on applying caller ID authentication standards to text messaging.46 III. REPORT AND ORDER 13. In this Report and Order, we for the first time require mobile wireless providers47 to take action to protect consumers from certain text messages that are highly likely to be illegal. We require these mobile wireless providers to block texts that purport to be from NANP numbers on a reasonable DNO list, which include numbers that purport to be from invalid, unallocated, or unused numbers, and NANP numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked; these are texts that no reasonable consumer would wish to receive because they are highly likely to be illegal. At the same time, and also consistent with our work on call blocking, we take steps to mitigate the risk of erroneous blocking by requiring mobile wireless providers to ensure that senders have access to points of contact to report erroneously blocked texts. 39 2003 TCPA Order, 18 FCC Rcd at 14115-16, paras. 165-66. 40 Id. at 14042-46, paras. 42-47; 47 CFR § 64.1200(f)(15)(i)-(iii) (exempting certain types of calls from the definition of “telephone solicitation”). Telemarketers may claim a safe harbor by demonstrating that any violation was the result of an error. 2003 TCPA Order, 18 FCC Rcd at 14040, para. 38; 47 CFR § 64.1200(c)(2)(i)-(iii). 41 47 CFR § 64.1200(c)(2). See also 2003 TCPA Order, 18 FCC Rcd at 14034, para. 28. 42 47 CFR § 64.1200(e). 43 The Commission has previously concluded that SMS and MMS text messaging is an information service and not a common-carrier service. See Messaging Declaratory Ruling, 33 FCC Rcd at 12082-12089, paras. 17-32, recon. pending, Rept. No. 3011 (Feb. 5, 2019). 44 NPRM at para. 18. 45 Spoofing is falsifying the caller ID information that appears on the called party’s phone with the intent to defraud, cause harm, or wrongfully obtain something of value. 47 U.S.C. § 227(e). 46 We are not adopting a caller ID authentication requirement here. Commenters generally opposed this and explained that illegal and unwanted messages rarely come from spoofed numbers and a caller ID authentication solution, even if feasible, would be unlikely to reduce unwanted and illegal text messages. See, e.g., CTIA Comments at 4-5, 11; EZ Texting Comments at 5-6; M3AAWG Comments at 10; NetNumber Comments at 7 & Reply at 2-3; Sinch Comments at 6-7; Telesign Comments at 2-3; T-Mobile Comments at 9-10; Verizon Comments at 7 & Reply at 4-5; WMC Global Comments at 2; AT&T Reply at 9-10; Cloud Communications Reply at 1-2; RWA Reply at 3-5; Vibes Reply at 2-4. 47 The rules we adopt in this Order are limited to SMS and MMS text messaging; therefore, for purposes of this Order, the service providers offering SMS and MMS text messaging are “mobile wireless providers.” 7 Federal Communications Commission FCC 23-21 14. We recognize at the outset the efforts providers and others have made in protecting consumers from illegal, or otherwise harmful, texts.48 As commenters have discussed, providers and others have adopted measures to protect consumers from such text messages, such as upfront vetting for bulk message senders, the CTIA Messaging Principles and Best Practices, and providers’ own requirements and guidance.49 We believe that our actions and proposals today complement those efforts while ensuring customers of all providers get a baseline of protection. While we believe industry efforts to date are important to protect consumers, the increases in consumer complaints and consumer harm from robotext messages convinces us to take additional measures to protect consumers. As some commenters note, robotexts will likely increase as scammers migrate from calling to texting.50 We agree with industry commenters that say fostering information and collaboration is an important part of the effort. But, in light of increased scams robbing consumers of their money and time, we disagree that we should wait to take targeted action. 15. We choose to act now and, for the first time, require text blocking by all mobile wireless providers so that all subscribers have the same basic level of protection.51 As the number of illegal text messages grows, so does the risk to consumers. Our action ensures protection for all wireless consumers, regardless of which mobile wireless provider they use to receive messages. We therefore disagree with CTIA, that we could undermine current efforts by mobile wireless providers to protect consumers from scam texts because there is a risk that some providers will “divert resources away from innovative solutions that can more accurately and effectively target spam text messages.”52 Given the limited nature of the rules we adopt and the unchallenged record data that consumers are increasingly harmed by text scams, we are not persuaded that mobile wireless providers would divert significant resources from other anti-spam initiatives and that they are not needed at this time. Nor does anything in the rules we adopt here prevent mobile wireless providers from engaging in existing or future anti-spam efforts or require them to block messages from short codes or OTT applications.53 A. Mandatory Blocking of Texts that are Highly Likely to be Illegal 16. We adopt our proposal to require mobile wireless providers to block text messages at the network level (i.e., without requiring consumer opt in or opt out). The rule we adopt requires that they block texts purporting to be from numbers on a reasonable DNO list.54 As the Commission determined 48 See, e.g. CTIA Comments at 8-9; INCOMPAS Comments at 6; T-Mobile Comments at 6; VON Comments at 3; AT&T Reply at 5; NCLC/EPIC Joint Reply at 5. 49 See, e.g., CTIA Comments at 9; Sinch Comments at 3; T-Mobile Comments at 4-7; Verizon Comments at 2; AT&T Reply at 3-6. 50 NORC Reply at 1. 51 Commenters share this goal of protecting consumers from illegal text messages. See, e.g., AB Handshake Comments at 1; Campaign Verify Comments at 3; CCA Comments at 4; CTIA Comments at 2-3; T-Mobile Comments at 10-11; Verizon Comments at 2; VON Comments at 2; AT&T Reply at 5-6; NCLC/EPIC Joint Reply at 1; Letter from Scott Bergmann, Senior Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 12, 2023) at 1 (CTIA 3/12/23 ex parte); Letter from Christopher L. Shipley, INCOMPAS; David Casem, Telnyx; Paula Boyd, Microsoft; Helen Marie Berg, Google, Michael Pryor, Cloud Communications Alliance; Greg Rogers, Bandwidth to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 10, 2023) at 1 (INCOMPAS Joint ex parte). 52 CTIA Comments at 13-14. 53 See id. (expressing concerns about blocking of legitimate text messages). 54 NPRM at para. 19. The text messaging services discussed in this proceeding are information services that route messages through the wireless mobile provider networks. Messaging Declaratory Ruling, 33 FCC Rcd at 12078, para. 8. In the NPRM, we observed that the definition of text message includes SMS messages but “does not include . . . a message sent over an IP-enabled messaging service to another user of the same messaging service.” NPRM at para. 23. Commenters generally agree that OTT messaging is not covered by our current definition of text (continued….) 8 Federal Communications Commission FCC 23-21 with calls, we find that no reasonable consumer would wish to receive text messages that spoof a number that is not in operation or, worse, purports to be from a well-known, trusted organization that does not send text messages and thus is highly likely to be a scam. Our requirement to block texts that purport to be from numbers on a reasonable DNO list does not include text messages from short codes. 17. We find it appropriate to adopt a mandatory rule here for blocking texts that purport to be from numbers on a reasonable DNO list for several reasons: (i) the texts from such numbers are likely to be illegal; (ii) illegal text messages can have links to malware, a problem that voice calls do not have; (iii) the volume of illegal text messages is increasing, particularly since we adopted measures to block such voice calls; (iv) consumers expect to receive texts from unfamiliar numbers, e.g., as appointment reminders and for double factor authentication, and therefore are more likely to open such messages even when they do not recognize the sending party; and (v) our approach provides benefits to consumers while imposing minimal burden on mobile wireless providers. 18. Our decision to require blocking here, rather than simply rely on industry’s voluntary efforts to block, as we have done in the past with certain call blocking, is in part the result of the heightened risk of text messages as both annoyance and vehicles for fraud. The ubiquity and familiarity of text messaging and the alerts that accompany texts contribute to consumers’ receptiveness to text messages.55 Data indicates that consumers read nearly all texts they receive, and do so nearly immediately.56 Indeed, industry data suggests that consumers open a far larger percentage of text messages than email, and open such messages much more quickly.57 This stands in contrast to calls where, as we have said repeatedly, consumers report no longer trusting calls from an unfamiliar number and refusing to answer them. Further, we believe this requirement does not impede text messaging by legitimate businesses because our rule is narrowly focused on a set of messages that are highly likely to be illegal: they purport to be from numbers from which no consumer should receive a text message.58 19. As the Senate Committee on Commerce, Science, and Transportation (Senate Commerce Committee) observed: “In recent years, spoofing scams in the United States have used text messaging services and other alternative voice communications services.”59 And Senator Schatz explains, “[t]exts (Continued from previous page) messaging. See, e.g., ABA Joint Commenters at 8; CRC Comments at 3; INCOMPAS Comments at 7 & Reply at 7. The App Association contends, and we agree, that imposing such new rules on OTT messaging services could disproportionately burden smaller carriers and OTT providers and suppress the development of new innovative solutions. App Association Reply at 5. Therefore, for purposes of this rule, we use the same definition of text message that the Commission has used for purposes of the Truth-in-Caller ID Act. See 47 CFR § 64.1600(o) et seq. That is, a “text message” is a “message consisting of text, images, sounds or other information that is transmitted to or from a device that is identified as the receiving or transmitting device by means of a 10-digit telephone number or N11 service code.” Id. It includes SMS and MMS messages, but does not include voice communication or messages sent over an IP-enabled messaging service to another user of the same messaging service. See id. 55 Messaging Declaratory Ruling, 33 FCC Rcd at 12079-80, para 12 & n.41. 56 Id. 57 Id. 58 See ABA Joint Commenters at 3; Weave Reply at 2-3. We agree with commenters that this step will help combat the rise of text message scams that rely on spoofing. See, e.g., Ad Hoc Comments at 3; ABA Joint Commenters at 5; Public Knowledge Reply at 3-4; Neustar Comments at 1; Schatz Letter at 1; State AGs Reply at 3-4. For example, iconectiv observes that SMS fraudsters often use unallocated numbers from foreign jurisdictions. iconectiv Comments at 1-2. For this reason, some mobile wireless providers already incorporate this DNO information into their blocking algorithms. iconectiv Comments at 2. 59 See Spoofing Prevention Act of 2017, Report of the S. Comm. On Commerce, Sci. & Transp. On S. 134, S. Rep No. 115-91, at 2 (2017) (Spoofing Prevention Act of 2017), available at https://www.congress.gov/congressional- report/115th-congress/senate-report/91/1 (last visited Feb. 22, 2023) (explaining proposed changes to 47 U.S.C. § 227(e)). 9 Federal Communications Commission FCC 23-21 from these numbers are surely illegal or unwanted, and it makes sense that mobile wireless carriers should block them.”60 Fifty-one State Attorneys General, a frontline of law enforcement, observe that they are receiving an increasing number of consumer complaints concerning illegal and/or unwanted text messages.61 They contend: As with voice calls purporting to be from [a reasonable DNO list], text messages from such numbers are also highly likely to be illegal. Simply stated, no wireless subscriber should be receiving any voice call or text message from these numbers. For example, a person receiving a text message from a number purporting to have an area code “000” would be receiving a text message from an invalid phone number. In this circumstance, a scammer has most likely spoofed an invalid number when sending the text message, and this type of fraudulent and misleading representation of information by the purported sender of the text message should not be permitted.62 We agree with the State AGs that this is a commonsense approach to blocking because it attacks those texts that are most likely to be fraudulent.63 20. Even if the number of texts using such spoofing is small, the costs to individual consumers that receive them can be high. For example, AB Handshake observes that the daily damage caused by “smishing” cases to the consumers of a single financial institution can reach $85,000.64 AB Handshake agrees that blocking invalid numbers can help to filter out some illegal messages.65 Further, the Senate Commerce Committee mentioned in its report accompanying the Spoofing Prevention Act of 2017 that phone fraud cost Americans $8.6 billion in 2014.66 We further agree with Public Knowledge, which notes that current voluntary text blocking means that mandatory blocking may not have considerable additional effect for some providers’ customers, but it also means that implementation should be relatively easy, inexpensive, and unlikely to result in excessive blocking.67 Indeed, commenters do not argue otherwise.68 21. We also find that the rule we adopt today will impose a minimal burden on mobile wireless providers while providing a necessary baseline level of protection to consumers. As many industry commenters note, many mobile wireless providers already employ measures to block text messages.69 These efforts include DNO-based blocking.70 For providers that already employ such 60 Schatz Letter at 1. 61 State AGs Reply at 2. 62 Id. at 3. 63 State AGs Reply at 3. 64 AB Handshake Comments at 1. 65 Id. at 3. 66 See Spoofing Prevention Act of 2017 at 2. 67 Public Knowledge Reply at 3. 68 See, e.g., CTIA Comments at 17 (mobile messaging networks already incorporate a substantial degree of authentication, and the wireless industry is working to improve its authentication capabilities today); T-Mobile Comments at 7 (T-Mobile only allows active, provisioned telephone numbers to originate text messages on the T- Mobile network); Vibes Reply at 3 (the industry already includes substantial registration and verification processes that are not present in the voice world). 69 See, e.g., AAPC Comments at 2; Blooston Comments at 3; CCA Comments at 3; CTIA Comments at 6-11 & Reply at 3-7; EZ Texting Comments at 6; M3AAWG Comments at 10; iconectiv Comments at 2; Pinger Comments at 2; Sinch Comments at 7-8; Somos Comments at 7-8; Telesign Comments at 3; T-Mobile Comments at 3, 7-8; Verizon Comments at 2; VON Comments at 3; AT&T Reply at 5; Infobip Reply at 2. Such efforts include a common means for consumers to report unwanted text messages through “7726 (SPAM).” See CTIA Comments at (continued….) 10 Federal Communications Commission FCC 23-21 measures, our rule imposes no additional burden. For the limited number of providers that do not currently employ such measures, our rule will provide consumers with a baseline level of protection against illegal and fraudulent text messages. We believe the rule we adopt today strikes the best balance between protecting consumers from illegal text messages while imposing minimal burden on mobile wireless providers. 22. We disagree with commenters who argue that consumers will become accustomed to seeing their text messages periodically blocked and will seek other messaging solutions.71 Because this blocking will occur at the network level, consumer recipients will not be aware of each blocked text, but will be protected before illegal robotexts ever reach their phones. We do not believe that any reasonable consumer would seek other messaging solutions because illegal texts, particularly scam texts, did not reach their phones. And we agree with Public Knowledge that commenters opposing this step have provided no evidence that texts are not delivered using such numbers or that that their current voluntary blocking already stops them.72 23. We disagree with CTIA’s argument that “given that the Commission’s call blocking rules for voice services—a service generally governed by Title II common carrier obligations—are largely permissive, it would be highly incongruous for the Commission to adopt mandatory blocking rules for text messaging, a Title I information service.”73 We recognize that, historically, our rules for voice calls generally permit and do not mandate blocking.74 However, we have recently adopted mandatory blocking requirements for gateway providers, some of which are not Title II services.75 Furthermore, the unique concerns of text messaging as vehicles for malware and as a more trusted form of communications than (Continued from previous page) 8-9. Wireless providers use information from this reporting mechanism to “track and aggregate the information that consumers report . . . and further calibrate their spam filters and blocking tools.” Id. 70 See, e.g., CTIA Comments at 11 (explaining that existing countermeasures prevent messages from invalid, unallocated, unused, or DNO telephone numbers from being transmitted to consumer’s wireless devices); T-Mobile Comments at 7-8 (messages on T-Mobile’s network are either consumer messages, directly originated on a device with a valid number and sent to another device with a valid number, or they are non-consumer messages that must be part of a pre-approved campaign with validated origination information). 71 CCA Comments at 8. 72 Public Knowledge Reply at 3. 73 CTIA Comments at 15 n.44. 74 See 47 CFR § 64.1200(k)(1), (2). 75 47 CFR § 64.1200(o) provides: A provider that serves as a gateway provider for particular calls must, with respect to those calls, block any calls purporting to originate from a number on a reasonable do-not-originate list. A list so limited in scope that it leaves out obvious numbers that could be included with little effort may be deemed unreasonable. The do-not-originate list may include only: (i) Numbers for which the subscriber to which the number is assigned has requested that calls purporting to originate from that number be blocked because the number is used for inbound calls only; (ii) North American Numbering Plan numbers that are not valid; (iii) Valid North American Numbering Plan Numbers that are not allocated to a provider by the North American Numbering Plan Administrator; and (iv) Valid North American Numbering Plan numbers that are allocated to a provider by the North American Numbering Plan Administrator, but are unused, so long as the provider blocking the calls is the allocatee of the number and confirms that the number is unused or has obtained verification from the allocatee that the number is unused at the time of blocking. 11 Federal Communications Commission FCC 23-21 calling, convince us that we should act quickly to mandate specific blocking of a narrow set of texts that are highly likely to be illegal. 24. We also disagree with AT&T’s contention that our estimation of costs to consumers due to illegal texts, at $6.3 billion, gives us the ability to justify any regulation as long as it costs the industry less than $6.3 billion to implement.76 Although AT&T disagrees with our estimate of the cost to consumers, it has not provided an estimate of industry’s cost to block texts that purport to be from numbers on a reasonable DNO list—a cost that we believe will be minimal due to the industry existing voluntary actions. These actions are reasonable responses to the harm and specifically focused to mitigate the ongoing damages consumers face from illegal, fraudulent text messages that mobile wireless providers transmit today. 25. Our requirement for mandatory blocking of texts that purport to be from numbers on a reasonable DNO list is straightforward and does not define “highly likely to be illegal” or ask mobile wireless providers to determine whether particular messages are “highly likely to be illegal.” We therefore disagree with CTIA that regulation of criteria used by mobile wireless providers to determine which text messages are “highly likely to be illegal” would be inconsistent with the classification of wireless messaging as Title I information service.77 26. We recognize that the Commission earlier concluded that, in the absence of Title II regulation, mobile wireless providers have employed effective methods to protect consumers from unwanted messages and thereby made wireless messaging a trusted and reliable form of communication for millions of Americans.78 The rule we adopt here does not affect providers’ ability to continue to employ such methods to protect consumers. Under our rules, mobile wireless providers are now required to block texts that purport to be from numbers on a reasonable DNO list.79 Mobile wireless providers remain free to continue the measures they are currently using to protect consumers from unwanted and illegal text messages.80 B. Point of Contact 27. We 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.81 This point of contact will enable texters to contact mobile wireless providers, with the goal of swiftly receiving and resolving complaints of unwarranted blocking of text messages.82 Several 76 AT&T Reply at 14. 77 CTIA Comments at 15. 78 Messaging Declaratory Ruling, 33 FCC Rcd at 12095, para. 43. 79 CCA asks whether a subscriber request for blocking a number as part of a reasonable DNO list would apply to blocking network-wide. Letter from Angela Simpson, Senior Vice President and General Counsel, Competitive Carriers Association to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023) at 1 (CCA ex parte). CCA is not clear as to their concern. As a general matter, however a number on a reasonable DNO list would be blocked by any provider in the text path. 80 We recognize that CTIA and the industry has established guidelines to encourage the innovative use of messaging, while also guarding against unwanted and unlawful text messages. For example, CTIA’s Messaging Principles and Best Practices promote the establishment of expectations that non-consumer message senders will obtain consumer consent prior to messaging consumers, and that they will honor consumer opt-outs, among other practices. CTIA Comments at 8. The rules we adopt here are not inconsistent with the measures that the industry has taken already. 81 See NPRM at para. 27 (seeking comment on requiring such single point of contact for resolving issues of erroneous blocking). 82 We recognize that there may be instances where a sender cannot readily identify the mobile wireless provider that blocked the text message. In such cases, we encourage the sender to work with its mobile wireless provider to (continued….) 12 Federal Communications Commission FCC 23-21 commenters observe that it would be helpful to have a point of contact, as already exists for blocked voice calls, in order to address and mitigate any text blocking issues. 28. 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. First, we require that providers need only accept blocking complaints from senders that can provide documented, objective evidence of blocking.83 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. 29. We also agree with CTIA that entities other than mobile wireless providers, such as aggregators or contractors, could be responsible for blocking.84 We therefore give providers flexibility to either establish their own point of contact85 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. In any case, we emphasize that any legitimate sender of text messages with documented, objective evidence of blocking should be able to easily contact the entity responsible for that blocking to resolve the dispute and expect providers, aggregators and contractors to respond appropriately. 30. Just as for blocked voice calls, we find that an easy means for texters to resolve potentially erroneous blocking will help ensure that consumers are not deprived of texts they would want to receive. While we anticipate minimal risk from our rule above, requiring mandatory blocking of texts from certain types of numbers,86 there may be instances of erroneous blocking due to providers’ voluntary blocking.87 For example, a provider or its blocking partners could choose to block texts of a sender who fails to comply with its terms of usage or who exhibits suspicious texting behavior. For these and other reasons where otherwise legal texts may be blocked, it is important for senders to easily resolve their texting problems with providers. 31. We decline to set time limits on resolving blocking error complaints.88 The ABA Joint Commenters contend that, when a sender makes a credible claim of erroneous blocking and the blocker determines that the text message should not have been blocked, the blocker should be required to cease (Continued from previous page) identify the appropriate contact. See Call Blocking Fourth Report and Order, 35 FCC Rcd at 15246 & n.175 (discussing requiring a point of contact for blocked calls). 83 CTIA 3/7/23 ex parte at 4. 84 Id. 85 Such point of contact may be the same point of contact for voice call blocking error complaints. 86 Sinch Comments at 10 (the risk of erroneous blocking is minimal when only text messages deemed “highly likely” to be illegal are subject to blocking); Public Knowledge Reply at 4. 87 See, e.g., ABA Joint Commenters at 7; CCA Comments at 10-11; Coalition for Open Messaging Comments at 3 (contending that wireless carriers impose barriers that prevent organizations’ ability to use person-to-person (P2P) messaging because such messaging is classified by the providers as business-to-consumer (A2P, thereby requiring the sender to register with carrier programs); INCOMPAS Comments at 3 & Reply at 4 (observing that some of the wireless carriers’ methods, like The Campaign Registry, carry significant operational burdens, privacy concerns, and high costs, but with little demonstrable consumer value being added); NORC Comments at 6 & Reply at 5 (contending that discretion in blocking legal texts should not be unbounded and that carriers use non-transparent “trust scores” to block); Pinger Comments at 2 (stating that overly broad carrier classifications can lead to situations where analytics programs indiscriminately block essential, urgent, and wanted messages and such indiscriminate blocking jeopardizes individuals’ health and safety); State Voices Comments at 12 (explaining that, if the text message sender exceeds a threshold of 0.1% of texts reported by consumers as spam, service providers may suspend services for that texter); Cloud Communications Reply at 2-5. 88 See NPRM at para. 27. 13 Federal Communications Commission FCC 23-21 blocking text messages from that number until circumstances change.89 We cannot, based on the record, adopt a standard to determine whether a text should be blocked or a reasonable time for the provider for make such a determination. These commenters also ask us to require that blocking disputes be resolved immediately, and no longer than six hours after receiving the dispute.90 We do not have any information in the record regarding a reasonable amount of time to resolve a dispute. C. Other Proposals 32. We decline to adopt rules for several of the other topics on which we sought comment.91 First, we decline to require text blocking notifications.92 The record indicates that service providers are already providing adequate notice when they block texts.93 For instance, NORC states that “wireless carriers already have an established response system that consists of approximately 2,000 codes” and, “[w]hen a text fails to send, the sender will receive a code reply from a specific carrier’s number with granular information about why the text failed, e.g., ‘Failed because of analytics blocking by carriers.’”94 33. We also decline at this time to enact rules regarding safeguarding against blocking of texts to 911 and other emergency numbers based on the record. For example, the Texas 911 Entities state that illegal texting to 911 currently does not appear to be a problem at Public Safety Answering Points (PSAPs).95 We will continue to monitor potential threats from unauthorized 911 communications to public safety and PSAPs, as these commenters suggest.96 Should industry or consumer complaints indicate that the situation has changed and that this category of texts is being blocked in a way that is problematic, we will not hesitate to revisit the issue. 34. Additionally, we are not adopting standards to ensure competitively neutral and content- neutral grounds for blocking;97 the rule we are adopting here, mandatory blocking of texts that purport to be from numbers on a reasonable DNO list, does not require a mobile wireless provider to examine the content of texts themselves. Mandatory blocking is based solely on the spoofed number associated with 89 ABA Joint Commenters at 7. 90 Id. 91 In the NPRM, we sought comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility. One commenter observed that our proposal may have a disparate effect on deaf, hard of hearing, visually impaired, impoverished, and neurodivergent people because they are more likely to rely on text messages than phone calls. CRC Comments at 3-4. However, the rules we adopt here should protect all consumers, including deaf, hard of hearing, visually impaired, impoverished, and neurodivergent persons from illegal texts. We do not find, based on the record, that this Report and Order will inhibit advances in diversity, equity, inclusion, and accessibility. 92 See, e.g., ABA Joint Commenters at 7; Ad Hoc Comments at 4-5; CCA Comments at 10-11; INCOMPAS Reply at 4-5; Weave Reply at 5-6. 93 See, e.g., NORC Comments at 5; Campaign Registry Reply at 3 (parties can track messaging back to its origins so that they can conduct the necessary follow up for the messaging in question); Verizon Reply at 3. Consumers may use apps or features on their mobile device to filter or block texts; the reply code discussed by commenters would apply to texts blocked by the mobile wireless providers. 94 NORC Comments at 5. Likewise, providers following CTIA’s “Messaging Security Best Practices” consent requirements, or similar standards, are blocking texts that fail to comply with such best practices. See Messaging Security Best Practices, https://api.ctia.org/wp-content/uploads/2022/06/Messaging-Security-Best-Practices-June- 2022.pdf. The CTIA Messaging Security Best Practices provides that “parties should respond within a reasonable timeframe to lawful inquiries from other stakeholders regarding the sending of Unwanted Messages or other potential abuses.” CTIA Messaging Security Best Practices at 3.22. 95 Texas 911 Entities Comments at 2. 96 Id. 97 See NPRM at para. 24. 14 Federal Communications Commission FCC 23-21 the text message. We also decline to adopt a safe harbor for text blocking.98 Because the blocking we adopt is mandatory rather than discretionary, and because the texts that may be blocked are highly likely to be illegal, we do not believe a safe harbor is necessary. 35. In the NPRM, we asked how consumer education and outreach could help address the problem and if there are ways the Commission can enhance its spam text message consumer education outreach and content.99 We are encouraged by the measures that mobile wireless providers are taking to inform their customers about unwanted and illegal text messages and the ways that they have facilitated consumer reporting of such texts, such as forwarding spam to 7726 in order to report spam to wireless service providers.100 As CTIA explains, wireless providers have established 7726 (SPAM) for consumers to report unwanted text messages.101 Mobile wireless providers use information consumers report through 7726 to further calibrate their spam filters and blocking tools.102 Further, reporting tools native to wireless device operating systems, from both Apple and Google, provide consumers with a more streamlined means of reporting spam text messages.103 In addition, our website and the FTC’s website offer helpful information on spam prevention to assist consumers.104 36. We also decline to adopt PACE’s proposals regarding the maintenance of a DNO list.105 PACE suggests that the Commission clarify who is responsible for maintaining a DNO list and adopt a centralized DNO list maintained by a single body; it also asks that the Commission require that the DNO list be scrubbed against the Reassigned Numbers Database and that any reassigned numbers be removed from the DNO list.106 We decline to do so because PACE does not identify why our current approach for DNO lists is flawed and thus how its proposal would correct a problem. 37. Finally, we decline to adopt caller ID authentication requirements for text messages based on record uncertainty about the current feasibility of such a requirement.107 For example, CTIA 98 See id. at para. 27. 99 See id. at paras. 37-38. 100 See, e.g., CTIA Comments at 8-9; M3AAG Comments at 4; Sinch Comments at 4; T-Mobile Comments at 6 (explaining that consumers can report spam by forwarding the message to 7726 (SPAM) and responding with the message sender’s telephone number or other identifier); AT&T Reply at 5. T-Mobile also notes that it works with Apple and Google to allow customers to report spam text messages. T-Mobile Comments at 6-7. Commenters observe that device software automatically asks the device holder if a deleted message should be reported as “junk,” which streamlines the spam reporting process for consumers and yields useful information about bad actors. Telesign Comments at 4; T-Mobile Comments at 6-7. 101 CTIA Comments at 8. 102 Id. at 8-9. 103 Id.at 9, citing Apple, Block, filter, and report messages on iPhone, https://support.apple.com/guide/iphone/block- filter-and-report-messages-iph203ab0be4/ios; Google Android, Report Spam, https://support.google.com/messages/answer/9061432?hl=en. See also Apple, Recognize and avoid phishing messages, phony support calls, and other scams, https://support.apple.com/en-us/HT204759 (last visited Feb. 17, 2023). 104 See, e.g., FCC, Consumer Alert, Scam Robotexts are a Rising Threat, (Jul. 28, 2022), https://www.fcc.gov/robotext-scams-rise; FCC, Consumer Guides, Stop Unwanted Robocalls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts (last visited Dec. 19, 2022); Federal Trade Commission, Consumer Advice, How to Recognize and Report Spam Text Messages, https://consumer.ftc.gov/articles/how-recognize-and-report-spam-text-messages (last visited Feb. 2, 2023). 105 PACE ex parte at 2-3. 106 Id. 107 See CTIA Comments at 18 (noting that STIR/SHAKEN applies exclusively to SIP technology, which does not apply to the majority of text messages). Commenters explain that illegal and unwanted messages rarely come from (continued….) 15 Federal Communications Commission FCC 23-21 explains that the architecture of wireless messaging platforms is such that wireless providers already know the transmitting provider (e.g., wireless provider or messaging solutions aggregator) and user identifier (whether long code, short code, or other marker) for text messages.108 CTIA notes that mobile wireless providers use this information to deliver text messages typically only from authorized providers and user identifiers using valid originating information through appropriate routing channels, and to more readily identify unauthorized traffic using illegitimate channels.109 T-Mobile also notes that the current anti-robocall regime is targeted at the primary sources of illegal robocalls, i.e., unverified telephone caller ID information and a common carrier regulatory regime, which does not apply to text messages.110 Other commenters explain that STIR/SHAKEN would not be a viable solution if spoofing were more prevalent, because among other reasons, STIR/SHAKEN only works on the Session Internet Protocol (SIP).111 We agree with providers, who argue that caller authentication solutions are “being actively considered that may be able to complement the vetting and monitoring solutions in use today,” but that these efforts are preliminary and require more study.112 In the Further Notice, we seek comment on whether and how the Commission can encourage efforts to develop technical solutions for text message authentication. D. Legal Authority 38. We find that we have legal authority to require providers to block certain text messages originating from NANP numbers and to require blockers to establish a point of contact for receiving and resolving blocking complaints. First, we find that, under the TCPA, the Commission has authority over the unsolicited text messages that fall within the scope of this order.113 The TCPA restricts certain autodialed and prerecorded or artificial voice calls to residential and wireless telephone numbers absent the prior express consent of the called party.114 The Commission has found that, for the purposes of the TCPA, texts are included in the term “call.”115 Because the Commission has authority to regulate certain text messages under the TCPA, particularly with regard to messages sent using an autodialer and without the consent of the called party, we have legal authority for the rules we adopt today. 39. Second, we find that we have authority under the Truth in Caller ID Act to adopt a blocking requirement. The Truth in Caller ID Act makes unlawful the spoofing of caller ID information “in connection with any voice service or text messaging service . . . with the intent to defraud, cause harm, or wrongfully obtain anything of value.”116 We find that adopting this requirement is necessary to (Continued from previous page) spoofed numbers and a caller ID authentication solution, even if feasible, would be unlikely to reduce unwanted and illegal text messages. See, e.g., CTIA Comments at 4-5, 11; EZ Texting Comments at 5-6; M3AAWG Comments at 10; NetNumber Comments at 7 & Reply at 2-3; Sinch Comments at 6-7; Telesign Comments at 2-3; T-Mobile Comments at 9-10; Verizon Comments at 7 & Reply at 4-5; WMC Global Comments at 2; Cloud Communications Reply at 1-2; RWA Reply at 3-5; Vibes Reply at 2-4. 108 CTIA Comments at 17. 109Id. 110 T-Mobile Comments at 2. 111 CTIA Comments at 18-19; Verizon Comments at 8; AT&T Reply at 9-10. 112 See, e.g., CTIA Comments at 18-19 & Reply at 13; iconectiv Comments at 3; NTCA Comments at 2-3; Sinch Comments at 14; T-Mobile Comments at 10. 113 The Commission stated in the 2003 TCPA Order that the authority to regulate telemarketing derives from the TCPA. 2003 TCPA Order, 18 FCC Rcd at 14070, para. 95. The Commission also observed that Congress anticipated “that the FCC, under its TCPA rulemaking authority, might need to consider changes in technologies.” Id. at 14092, para. 132. 114 47 U.S.C. § 227(b)(1)(A). 115 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165. 116 47 U.S.C. § 227(e)(1). 16 Federal Communications Commission FCC 23-21 block calls that unlawfully spoof numbers on reasonable DNO lists, and thus is authorized by the Truth in Caller ID Act. 40. Finally, we find that we have authority under Title III of the Act to adopt these measures. As courts have recognized, Title III “endow[s] the Commission with ‘expansive powers’ and a ‘comprehensive mandate to “encourage the larger and more effective use of radio in the public interest.”’117 Section 303 of the Act grants the Commission authority to establish operational obligations for licensees that further the goals and requirements of the Act if such obligations are necessary for the “public convenience, interest, or necessity” and are not inconsistent with other provisions of law.118 In particular, section 303(b) authorizes the Commission to “[p]rescribe the nature of the service to be rendered by each class of licensed stations and each station within each class,” and that is what our mandatory blocking rule addresses here.119 In addition, sections 307 and 316 of the Act allow the Commission to authorize the issuance of licenses or adopt new conditions on existing licenses if such actions will promote public interest, convenience, and necessity.120 We find the requirements we adopt for mobile wireless providers here are necessary to protect the public from illegal text messages and that such a requirement is in the public interest. Because we find that the sources of authority identified above provide sufficient authority for the rules we adopt today, we find it unnecessary to address other possible sources of authority to adopt these rules. 41. We disagree with AT&T’s position that our regulatory intervention would have “an enormous economic impact, and in view of the lack of clear statutory authority . . . the Commission should await more direct authorization from Congress before proceeding to rules.”121 First, AT&T’s reliance on the Supreme Court’s decision in West Virginia v. EPA is inapt in this regulatory context, where Congress has granted the Commission “expansive powers” and a “comprehensive mandate” to “encourage the larger and more effective use of radio in the public interest” in Title III of the Act.122 Congress’s delegation of broad spectrum management authority to the Commission—which is longstanding and remains unaltered—recognizes that the field of radio communications is “dynamic” and rapidly changing, and court decisions such as Cellco Partnership have recognized that the Commission has broad authority under Title III to adopt rules addressing what services must be rendered by licensees.123 Second, the limited obligations on mobile wireless providers adopted here are far from the “extraordinary case” involving the kind of “transformative” regulations at issue in West Virginia v. 117 Cellco P’ship v. FCC, 700 F.3d 534, 542 (D.C. Cir. 2012) (Cellco Partnership) (upholding the Commission's authority under Title III to adopt data roaming rules) (quoting Nat’l Broad. Co. v. United States, 319 U.S. 190, 219 (1943) (Nat’l Broad Co.)). 118 47 U.S.C. § 303. 119 See Cellco P’ship, 700 F.3d at 543 (“Like other rules that govern Title III services, the data roaming rule merely defines the form mobile-internet service must take for those who seek a license to offer it.”). We find several other provisions of Section 303 relevant here. See 47 U.S.C. § 303(g) (requiring the Commission to “encourage the larger and more effective use of radio in the public interest”); id. § 303(r) (authorizing the Commission to “[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this [Act]”). 120 See 47 U.S.C. § 307; 316; see also Cellco P’ship, 700 F.3d at 543 (recognizing section 316 as additional Title III authority for our data roaming rules). 121 AT&T Reply at 14 (citing West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022)). 122 Nat’l Broad. Co., 319 U.S. at 219. 123 See Cellco P’ship, 700 F.3d at 542-43; see also Implementation of the National Suicide Hotline Improvement Act of 2018, Second Report and Order. 36 FCC Rcd 16901, 16933 (2021) (relying on the Commission’s Title III authority, including sections 303, 307, and 316, to impose text-to-988 obligations on CMRS providers). 17 Federal Communications Commission FCC 23-21 EPA,124 especially given the record evidence regarding licensees’ existing blocking practices.125 42. AT&T’s argument is based on the premise that we would be adopting rules on the full range of issues on which we sought comment in the NPRM, including caller ID authentication for text messages, as well as an unsupported assertion that the rules would have an “enormous economic impact.”126 However, we are adopting only two narrow rules in this Report and Order, and we find that these rules will not have an enormous economic impact and will not be overly burdensome for mobile wireless providers to implement (in part, because some providers, like AT&T, are already “broadly block[ing] text messages sent from invalid, unallocated, unassigned, and spoofed numbers”).127 Further, AT&T has not provided any evidence that the rules adopted here would, in fact, have an enormous economic impact. For the reasons explained above, we find that the Commission does have ample authority to adopt these new rules. E. Cost-Benefit Analysis 43. AT&T challenges the proposed cost benefit analysis in the NPRM, but it provides no basis for challenging the assumptions behind it.128 In the analysis of the expected benefits, we estimated that consumers incur a 5 cent nuisance harm for each spam text received.129 Further, we estimated that consumers incur $2 billion in harm due to fraudulent spam texts annually.130 Our estimates were based on our experience estimating the harms caused by illegal robocalls. In that context, we assumed that each robocall causes a 10 cent nuisance harm and that fraudulent robocalls result in annual harm of $10.5 billion.131 We proposed to attribute a lower nuisance harm of 5 cents to a spam text because we believed that they are less disruptive to consumers, e.g., because consumers can simply delete a text instead of having to listen to a robocall first then delete it. Further, we assumed that harm from fraudulent spam texts is about 20% of the harm caused by fraudulent robocalls fraud costs. 44. Our estimate of the harm due to fraudulent texts was conservative. For example, one source puts financial losses due to spam texts at $28 billion in 2022.132 In total, we estimated that the blocking of illegal robotexts would achieve an annual benefit of at least $6.3 billion.133 In the NPRM we sought comment on these assumptions and received no alternatives in the record.134 124 West Virginia v. EPA, 142 S. Ct. at 2608, 2610. 125 See, e.g., AAPC Comments at 2; Blooston Comments at 3; CCA Comments at 3; CTIA Comments at 6-11 & Reply at 3-7; EZ Texting Comments at 6; M3AAWG Comments at 10; iconectiv Comments at 2; Infobip Reply at 2; Pinger Comments at 2; Sinch Comments at 7-8; Somos Comments at 7-8; Telesign Comments at 3; T-Mobile Comments at 3; Verizon Comments at 2; VON Comments at 3; AT&T Reply at 5 (AT&T employs a multi-layered defense against illegal and unwanted text messages that incorporates technological innovation and proactive collaboration). 126 AT&T Reply at 5. 127 Id. 128 Id.at 13-14. 129 NPRM at para. 43. 130 Id. at para. 44. 131 Call Authentication Trust Anchor, Implementation of TRACED Act Section 6(a)—Knowledge of Customers by Entities with Access to Numbering Resources, WC Docket Nos. 17-97, 20-67, Report and Order and Further Notice of Proposed Rulemaking, 35 FCC Rcd 3241, 3263, paras. 47-48 (2020) (STIR/SHAKEN Order). 132 Robokiller, The Robokiller Report: 2022 Mid-Year Phone Scam Insights at 9 (2022), https://www.robokiller.com/the-robokiller-report (last visited Feb. 14, 2023). 133 See NPRM at para. 43. 18 Federal Communications Commission FCC 23-21 45. Since we released the NPRM, the number of spam texts has increased to an estimated 147 billion annually.135 Assuming a 5 cent nuisance cost per spam text and a conservative $2 billion fraud cost for all spam texts, the total harm of spam texts would be $9.35 billion annually.136 While the rule we adopt today will not block all spam texts, it will block some percentage of them. Even a small reduction in spam texts would result in benefit to consumers of many millions of dollars annually. Because costs to providers are expected to be modest, given the record evidence regarding licensees’ existing blocking practices,137 we expect the benefits of this policy to exceed its costs. 46. In our analysis of the expected costs in the NPRM, we estimated that the text blocking requirement would result in an overall reduction of costs to text service providers due to the expected reduction in network congestion costs incurred by providers as a result of spam texts.138 We sought comment on these estimated net cost savings due to reduction in network congestion,139 and received no comments challenging this estimate.140 In addition, we estimate that out-of-pocket costs to mobile wireless providers to comply with the new blocking rule will be modest given the record evidence regarding providers’ existing blocking practices and, as noted above, that any such costs will be more than offset by cost savings from reduced network congestion. 47. Based on the analysis of the anticipated benefits and costs discussed above, and in light of the record evidence regarding mobile wireless providers’ existing blocking practices, we believe the benefits of the rules adopted in this Report and Order significantly outweigh their costs. IV. FURTHER NOTICE OF PROPOSED RULEMAKING 48. In this Further Notice of Proposed Rulemaking, we seek comment on additional protections for consumers against illegal robotexts. We first seek comment on whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams. We also seek comment on text message authentication. Next, we propose to extend Do- Not-Call protections to marketing text messages. We also seek to ban the practice of obtaining a single consumer consent as justification for calls and texts from multiple, sometimes hundreds, of sellers and potential fraudsters. 49. Our action in the Report and Order above provides a baseline level of consumer protection from spoofed text messages. The actions we propose below would address more potentially illegal messages. Consumers have come to rely on texts from trusted institutions that may not be on a DNO list, such as a child’s school, a doctor’s office, state and local governments, utility providers, and financial institutions. The messages they carry are often brief and consumers’ expectation upon receipt is that such messages contain important, and perhaps urgent, information. For that reason, consumers may have a more difficult time recognizing these scams.141 (Continued from previous page) 134 We note that AT&T offers no alternative estimate of the economic benefit from blocking illegal texts. See AT&T Reply at 13-14. 135 Id. at 4. 136 $0.05*147 billion + $2 billion = $9.35 billion. 137 See para. 21, supra. 138 See NPRM at para. 47. 139 See id. at para. 46. The NPRM stated that the Commission would analyze “any detailed cost data” received in comments. See id. at para. 47. However, no detailed cost data was submitted in the record. 140 We note that AT&T does not challenge this point. See AT&T Reply at 13-14. 141 Public Knowledge Reply at 2. 19 Federal Communications Commission FCC 23-21 A. Block Texts Upon Commission Notification 50. We propose to require terminating mobile wireless providers to investigate and potentially block texts from a sender after they are on notice from the Commission that the sender is transmitting suspected illegal texts, similar to our requirement for gateway providers with respect to voice calls. Where texts are clearly illegal, and where the Commission has put providers on notice of the illegal texts, we believe mobile wireless providers have no legitimate reason to transmit the texts. We therefore seek comment on extending this approach, which the Commission has in place for call blocking, to text blocking.142 51. In the Gateway Provider Report and Order, the Commission required gateway providers to block illegal voice traffic when notified of such traffic by the Commission through the Enforcement Bureau.143 We seek comment on whether we should adopt the same process here for mobile wireless providers and texts, as we did there for gateway providers and voice calls. 52. Specifically, our rules (in section 64.1200(n)(5)) require the Enforcement Bureau to issue a Notification of Suspected Illegal Traffic that: (1) identifies with as much particularity as possible the suspected illegal traffic; (2) provides the basis for the Enforcement Bureau’s reasonable belief that the identified traffic is unlawful; (3) cites the statutory or regulatory provisions the suspected illegal traffic appears to violate; and (4) directs the provider receiving the notice that it must comply with the requirements in section 64.1200(n)(5) of the Commission’s rules by a specified date that gives the provider a minimum of 14 days to comply.144 Notified gateway voice providers must then promptly investigate the identified traffic and either block the identified traffic and substantially similar traffic on an ongoing basis or respond to the Commission that the provider has a reasonable basis for concluding that the identified calls are not illegal.145 If a provider fails to comply, the Commission established a process through which the Enforcement Bureau can require all providers immediately downstream from that gateway provider to block all traffic from that provider.146 53. We seek comment on whether there are any differences between calling and texting that would suggest that this model would not work well for texting. What would be the cost to providers of implementing such a requirement? Can providers and the Commission’s Enforcement Bureau properly trace text messages to their originating provider to effectuate these rules? Are there additional requirements the Commission should adopt to ease any traceback efforts for text messaging? Because providers state that they already do a considerable amount of text blocking,147 we would not expect our proposal to impose material additional costs. Is that correct? We seek comment on these questions specifically and this recommendation generally. B. Text Message Authentication and Spoofing 54. In the Order, we declined to adopt caller ID authentication requirements for text 142 See 47 CFR § 64.1200(n)(2). 143 Gateway Provider Report and Order, 2022 WL 1631842 at paras. 74-86; see 47 CFR § 64.1200(n)(5). 144 47 CFR § 64.1200(n)(5)(i)(A); see also Gateway Provider Report and Order, 2022 WL 1631842 at para. 80. 145 47 CFR § 64.1200(n)(5)(i)(A), (B); see also Gateway Provider Report and Order, 2022 WL 1631842 at para. 83. 146 47 CFR §§ 64.1200(n)(5)(ii), (iii), 64.1200(o); see also Gateway Provider Report and Order, 2022 WL 1631842 at paras. 84-86. 147 See, e.g., AAPC Comments at 2; Blooston Comments at 3; CCA Comments at 3; CTIA Comments at 6-11 & Reply at 3-7; EZ Texting Comments at 6; M3AAWG Comments at 10; iconectiv Comments at 2; Infobip Reply at 2; Pinger Comments at 2; Sinch Comments at 7-8; Somos Comments at 7-8; Telesign Comments at 3; T-Mobile Comments at 3; Verizon Comments at 2; VON Comments at 3; AT&T Reply at 5. 20 Federal Communications Commission FCC 23-21 messages based on the current record.148We seek comment on the extent of number spoofing and if there are other solutions that are better targeted to address the problem of spoofed text messages. If so, what are they and how can the Commission encourage their development and adoption? We note that, while some commenters say number spoofing is not a problem for text messages,149 others say bad actors spoof their phone numbers or identities.150 In the robocalling context, the Commission has found that a subset of small voice service providers are responsible for a large number of illegal robocalls.151 Is a similar dynamic at issue with robotexts? If so, how might the Commission target these specific providers? How might the Commission encourage industry members to collaborate and finalize technical solutions for authenticating text messages and mitigating illegal text messages? For example, should the Commission adopt a deadline for providers to develop a text message authentication solution or an alternative technical solution for addressing the problem of spoofed text messages? Commenters should address how the Commission can ensure non-discriminatory policies in adopting text authentication measures.152 C. Clarifying Do-Not-Call Protections for Text Messages 55. To the extent it remains unclear, we propose to clarify that National DNC Registry protections apply to text messages as well as voice calls and to codify this clarification in our rules. The National Do-Not-Call Registry has been operational for almost two decades and currently protects over 246 million telephone numbers from telemarketing sales calls, or “telephone solicitations.”153 As such, it represents a critical component of our policy strategy against unwanted calls. Although the Commission has stated that “text messages” are “calls” for TCPA purposes,154 it has not explicitly included text messages in the codified DNC rules.155 The Commission’s DNC rules protect wireless phone subscribers 148 Most commenters to our NPRM observe that illegal and unwanted messages rarely come from spoofed numbers and a caller ID authentication solution, even if feasible, would be unlikely to reduce unwanted and illegal text messages. See, e.g., CTIA Comments at 4-5, 11; EZ Texting Comments at 5-6; M3AAWG Comments at 10; NetNumber Comments at 7 & Reply at 2-3; Sinch Comments at 6-7; Telesign Comments at 2-3; T-Mobile Comments at 9-10; Verizon Comments at 7 & Reply at 4-5; WMC Global Comments at 2; Cloud Communications Reply at 1-2; RWA Reply at 3-5; Vibes Reply at 2-4. 149 CTIA Comments at 4-5. 150 ABA Joint Commenters Comment at 3 (stating that “[o]ur members report that bad actors illegally ‘spoof’ phone numbers belonging to legitimate businesses when sending text messages – i.e., the bad actor sends a text message from a number that appears to belong to the legitimate business or sends a text message from the bad actor’s own number, making it appear that it is from a legitimate business, with the intent to defraud the recipient”). 151 Call Blocking Fourth Report and Order, 36 FCC Rcd at 17844-17845, paras. 10-13. 152 See, e.g., VON Comments at 5 (observing that competitive neutrality must be at the forefront of any solution to illegal texting and solutions must not endorse or enable anti-competitive practices that providers have seen in the industry); Cloud Communications Reply at 3 (noting concerns that the industry’s application of current principles and practices has led to discriminatory conduct and the blocking of legitimate texts); NORC Reply at 2 (noting that the record demonstrates that there is a lack of transparency and accountability in blocking by mobile wireless providers). 153 See FTC National Do-Not-Call Registry Data Book for Fiscal Year 2022, https://www.ftc.gov/reports/national- do-not-call-registry-data-book-fiscal-year-2022 (last visited Feb. 2, 2023). The TCPA defines a “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person” but not including calls or messages made with prior express invitation or permission, to any person with whom the caller has as established business relationship, or by a tax exempt nonprofit organization. 47 U.S.C. § 227(a)(3). 154 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165. 155 Although the inclusion of text messages in the National DNC Registry protections has not been codified, the Commission has previously taken the position that the National DNC Registry protects consumers from unwanted text messages that contain marketing when the consumer has placed their number on the National DNC Registry. See Emanuel (Manny) Hernandez, Click Cash Marketing, LLC, and Rock Solid Traffic, Citation and Order, (continued….) 21 Federal Communications Commission FCC 23-21 by requiring prior express invitation or permission in writing for calls to wireless numbers on the DNC Registry.156 56. Commenters ask us to clarify that the DNC rules apply to both voice calls and texts.157 As these commenters note, the DNC rules would bring considerable protection for recipients of marketing texts. Specifically, our rules require that, before sending a marketing text to consumers, the texter must have the consumer’s prior express invitation or permission, which must be evidenced by a signed, written agreement between the consumer and seller, which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.158 57. We seek comment on this proposal. Would codifying the DNC protections to marketing texts further protect consumers from unwanted marketing text messages? We note that the DNC protections do not depend on whether the caller uses an autodialer, unlike some provisions of the TCPA.159 In this regard, would our proposal also represent an important codification of consumer protections? Are there downsides to our proposal? D. Closing the Lead Generator Loophole 58. We propose to 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. 59. In an illustration of the issue, Assurance IQ describes a website that purports to enable consumers to comparison shop for insurance.160 The website sought consumer consent for calls and texts from insurance companies and other various entities, including Assurance IQ’s “partner companies.”161 The “partner companies” were listed in a hyperlink on the web page (i.e., they were not displayed on the website without clicking on the link) and the list of “partner companies” included both insurance companies and other entities that did not appear to be related to insurance.162 60. Public Knowledge argues that lead generators and data brokers use hyperlinked lists to harvest consumer telephone numbers and consent agreements on a website and pass that information to (Continued from previous page) Unauthorized Text Message Violations, 33 FCC Rcd 12382 (EB 2018) (Hernandez Citation) (Mr. Hernandez was responsive to the citation and no fine was issued.). 156 47 CFR § 64.1200(e), (c)(2)(ii); 2003 TCPA Order, 18 FCC Rcd at 14034, paras. 28, 36. As we stated in the 2003 TCPA Order, “wireless subscribers may participate in the national do-not-call list” and “we will presume wireless subscribers who ask to be put on the national do-not-call list to be ‘residential subscribers’” for purposes of our DNC rules. Id. at 14039, para. 36. 157 NCLC/EPIC Joint Reply at 7 (the prohibition against making telephone solicitation calls to telephone numbers registered on the National DNC Registry without consent applies to texts and calls that include solicitations). 158 47 CFR 64.1200(c)(2)(ii). 159 See 47 U.S.C. §§ 227(b)(1)(A), (b)(1)(D), (d)(1)(A). 160 Assurance IQ filed a petition before the Commission seeking clarification that a caller may rely on presumed consent from online forms for TCPA purposes, among other things. Comments were due July 6, 2020. Assurance IQ Petition (CG Docket No. 02-278, filed May 12, 2020) (Assurance IQ Petition). A request to withdraw the Assurance IQ Petition was submitted May 10, 2022. Letter from Paul C. Besozzi, counsel for Assurance IQ, LLC, to Marlene H. Dortch, Secretary, Federal Communications Commission (May 10, 2022), filed in CG Docket No. 02- 278. 161 Assurance IQ Petition at 2-3 (CG Docket No. 02-278, filed May 12, 2020). 162 Id. 22 Federal Communications Commission FCC 23-21 telemarketers and scam callers.163 Commenters also provide an example of another insurance company website that has 8,423 entities on the hyperlinked page.164 The telemarketer that obtains the consumer’s contact information from the lead generator may believe that it has the consumer’s prior express consent, but, commenters argue, the consumer has not consented to the particular caller or callers, which may be listed as “partner companies” in these arrangements.165 61. We seek comment on amending our TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page.166 The Commission has not addressed this aspect of consent in the past. Would our proposal better protect consumers from receiving large numbers of calls and texts they do not wish to receive when they visit websites such as comparison shopping websites? Consumers may find comparison shopping websites helpful; how can we ensure that they can consent to obtain further information from the site without receiving numerous calls and texts from unrelated companies? Commenters should discuss whether our proposal would limit the value of comparison-shopping sites to consumers. Are there alternatives to our proposal that would better protect consumers from the harms we have identified? We also seek comment on Public Knowledge’s request that prior express consent to receive calls or texts must be made directly to one entity at a time.167 62. More broadly, we seek comment on the extent of the problem, our proposed rule, and whether the proposed rule will clarify consent and help to eliminate illegal text messages and calls.168 Are there different or additional limitations on multi-party consent we should consider? E. Digital Equity and Inclusion 63. The Commission, as part of its continuing effort to advance digital equity for all,169 163 Public Knowledge Reply at 5-6. Commenters explain that telemarketers ignore the requirement that the express invitation or permission can only be provided by the consumer directly to the seller. NCLC/EPIC Joint Reply at 7-8. 164 Letter from Margot Saunders, National Consumer Law Center, to Marlene H. Dortch, Secretary, Federal Communications Commission (Dec. 16, 2022) at slide 10-11 (NCLC/EPIC 12/16 ex parte). 165 NCLC/EPIC Joint Comments at 4; NCLC/EPIC Joint Reply at 8 (explaining that clicking on a link that contains a hidden URL with the names of thousands of sellers does not meet the E-Sign definition of an “electronic signature,” because there was no separate agreement with each seller, and the consumer could not have had the intent to sign such a separate agreement with each of the thousands of sellers listed on the webpage connected with the URL). 166 Under our Truth in Billing rules, “clear and conspicuous” is notice that would be apparent to a reasonable consumer. 47 CFR § 64.2401(e). We use the same definition for junk fax opt-out notice requirements. See Rules and Regulations Implementing the Telecommunications Consumer Protection Act of 1991, Junk Fax Prevention Act of 2005, CG Docket 02-278, Report and Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3801, para. 26 (2006) (Consistent with the definition in our truth-in-billing rules, “clear and conspicuous” for purposes of the opt-out notice means a notice that would be apparent to a reasonable consumer.). 167 Public Knowledge Reply at 5. REACH contends that its standards limit the number of partners that may be included in a disclosure, clearly advise the consumer that telemarketing calls will result from an online submission, and prevent the use of prerecorded calls as the first contact to a consumer providing their information online. REACH ex parte at 3. QuinStreet argues that any approach to consent should continue to enable consumer choice and website owner flexibility, because many high-quality site owners are small- and medium-sized businesses. Letter from Yaron Dori, Covington and Burling, LLP, counsel to Quinstreet, Inc., to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023). 168 One commenter contends that the lack of standards in the lead generation industry is to blame for between 500,000,000 and 1 billion unwanted calls per month. REACH ex parte at 2. 169 Section 1 of the Communications Act provides that the FCC “regulat[es] interstate and foreign commerce in communication by wire and radio so as to make [such service] available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex.” 47 U.S.C. § 151. 23 Federal Communications Commission FCC 23-21 including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, invites comment on any equity-related considerations170 and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility. F. Legal Authority 64. In the Further Notice of Proposed Rulemaking, we seek comment on four issues: (i) whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams; (ii) text message authentication; (iii) extending Do-Not-Call protections to marketing text messages; and (iv) preventing marketers from using a single consumer consent as justification for calls and texts from numerous parties. 65. We seek comment on our authority to adopt each of the measures. We note that the Commission has authority to regulate certain text messages under the TCPA, particularly with regard to messages sent using an autodialer and without the consent of the called party. We seek comment on whether we have legal authority for the proposed rules under the TCPA. Do the TRACED Act or the TCPA provide authority for our proposals? Do we have authority for our proposals under section 251(e) of the Act, which provides us “exclusive jurisdiction over those portions of the North American Numbering Plan that pertain to the United States?”171 The Commission found authority to implement STIR/SHAKEN for voice service providers under section 251(e) in order to prevent the fraudulent exploitation of numbering resources.172 Does section 251(e) of the Act grant us authority to adopt implementation of authentication for text messages? We seek comment on whether that authority extends to text messages. We seek comment on our authority under the Truth in Caller ID Act for these proposals. The Commission found authority under this provision to mandate STIR/SHAKEN implementation, explaining that it was “necessary to enable voice service providers to help prevent these unlawful acts and to protect voice service subscribers from scammers and bad actors.”173 We believe that same reasoning applies here, especially given Congress’s focus on text messages, and seek comment on that conclusion. V. PROCEDURAL MATTERS 66. Paperwork Reduction Act. This document may contain new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. All such new or modified information collection requirements will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other federal agencies will be invited to comment on any new or modified information collection requirements contained in this proceeding. In this present document, we have assessed the effects of our requirement that mobile wireless providers block texts purporting to be from NANP numbers on a reasonable DNO list, which include numbers that purport to be from invalid, unallocated, or unused numbers, and NANP 170 We define the term “equity” consistent with Executive Order 13985 as the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality. See Exec. Order No. 13985, 86 Fed. Reg. 7009, Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Jan. 20, 2021). 171 47 U.S.C. § 251(e). 172 STIR/SHAKEN Order, 35 FCC Rcd at 3260-61, para. 42. 173 Id. at 3262, para. 44. 24 Federal Communications Commission FCC 23-21 numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked. We find that, to the extent this requirement constitutes an information collection, such collection will not present a substantial burden for small business concerns with fewer than 25 employees and that any such burdens would be far outweighed by the benefits to consumers from blocking text messages that are highly likely to be illegal. 67. The Further Notice of Proposed Rulemaking may contain proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on any information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107- 198, see 44 U.S.C. § 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees. 68. Compliance Deadline. We acknowledge that mobile wireless providers will need sufficient time in which to comply with these new requirements.174 We therefore require mobile wireless providers to comply with both rules we adopt here no later than six months after publication of notice of OMB approval under the Paperwork Reduction Act. This allows parties sufficient time to update their processes and come into compliance. 69. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA),175 requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”176 Accordingly, we have prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the impact of the rule changes contained in the Report and Order on small entities. The FRFA is set forth in Appendix D. We have also prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible impact of the rule changes contained in the Further Notice on small entities. The IRFA is set forth in Appendix E. 70. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. § 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. § 801(a)(1)(A). 71. Ex Parte Rules. The proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules.177 Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation 174 Several parties have requested the Commission give them additional time to implement these new requirements. See, e.g., Blooston Comments at 4 (small providers should have additional time to comply); Weave Reply at 8 (same); RWA Reply at 5 (small providers should not have to comply until after the larger carriers have implemented the new rule); CTIA ex parte at 4 (requesting 12 months at minimum, and longer for smaller providers); Letter from Angela Simpson, Senior Vice President and General Counsel, Competitive Carriers Association to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023) at 1 (CCA ex parte) (30 days is insufficient). 175 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601, et seq., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (CWAAA). 176 Id. § 605(b). 177 47 CFR §§ 1.1200 et seq. 25 Federal Communications Commission FCC 23-21 must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b) of the Commission’s rules. In proceedings governed by section 1.49(f) of the Commission’s rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules.178 72. Filing of Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/. • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. • Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, D.C. 20554. • Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (OMD 2020). 73. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice). 74. Availability of Documents. Comments, reply comments, ex parte submissions, and the Report and Order and Further Notice of Proposed Rulemaking will be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. When the FCC Headquarters reopens to the public, documents will also be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 45 L Street NE, Washington, D.C. 20554. 75. Additional Information. For additional information on this proceeding, contact Mika Savir, mika.savir@fcc.gov or 202 418-0384, of the Consumer and Governmental Affairs Bureau, 178 47 CFR § 1.49(f). 26 Federal Communications Commission FCC 23-21 Consumer Policy Division. VI. ORDERING CLAUSES 76. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 227, 301, 303, 307, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 227, 301, 303, 307, and 316, that this Report and Order and Further Notice of Proposed Rulemaking IS ADOPTED. 77. IT IS FURTHER ORDERED that, pursuant to applicable procedures set forth in sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419, interested parties may file comments on the Further Notice of Proposed Rulemaking on or before 30 days after publication in the Federal Register, and reply comments on or before 60 days after publication in the Federal Register. 78. IT IS FURTHER ORDERED that the Report and Order SHALL BE EFFECTIVE 30 days after publication in the Federal Register Compliance with sections 64.1200(p) and (r) of the Commission’s rules, 47 CFR §§ 64.1200(p), (r), which may contain new or modified information collection requirements, will not be required until six months after the Office of Management and Budget completes review of any information collection requirements that the Consumer and Governmental Affairs Bureau determines are required under the Paperwork Reduction Act. The Commission directs the Consumer and Governmental Affairs Bureau to announce the compliance date for sections 64.1200(p) and (r) by subsequent Public Notice and to cause section 64.1200 to be revised accordingly. 79. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order and Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis and the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 80. IT IS FURTHER ORDERED that the Office of the Managing Director, Performance Evaluation and Records Management, SHALL SEND a copy of this Report and Order in a report to be sent to Congress and to the Governmental Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A). FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 27 Federal Communications Commission FCC 23-21 APPENDIX A Final Rules PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS Subpart L—Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising 1. Amend § 64.1200 by adding new paragraphs (p) and (q) to read: (p) A mobile wireless provider must block a text message purporting to originate from a North American Numbering Plan number on a reasonable do-not-originate list. A list so limited in scope that it leaves out obvious North American Numbering Plan numbers that could be included with little effort may be deemed unreasonable. The do-not-originate list may include only: (1) North American Numbering Plan Numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked; (2) North American Numbering Plan numbers that are not valid; (3) Valid North American Numbering Plan numbers that are not allocated to a provider by the North American Numbering Plan Administrator; and (4) Valid North American Numbering Plan numbers that are allocated to a provider by the North American Numbering Plan Administrator, but are unused, so long as the provider blocking the message is the allocatee of the number and confirms that the number is unused or has obtained verification from the allocatee that the number is unused at the time of blocking. (q) Paragraph (p) of this section may contain an information-collection and/or recordkeeping requirement. Compliance with paragraph (p) will not be required until this paragraph (q) is removed or contains a compliance date, which will not occur until after the Office of Management and Budget completes review of such requirements pursuant to the Paperwork Reduction Act or until after the Consumer and Governmental Affairs Bureau determines that such review is not required. The Commission directs the Consumer and Governmental Affairs Bureau to announce a compliance date for paragraph (p) by subsequent Public Notice and to cause this section 64.1200 to be revised accordingly. 2. Amend § 64.1200 by adding new paragraph (r) to read: (r) A mobile wireless provider must provide a point of contact or ensure its aggregator partners or blocking contractors that block text messages on its network provide a point of contact to resolve complaints about erroneous blocking from message senders that can document that their messages have been blocked. Such point of contact may be the same point of contact for voice call blocking error complaints. 28 Federal Communications Commission FCC 23-21 APPENDIX B List of Commenters Commenter Abbreviated Name Date Filed Aaron Read Aaron Read 10/3/22 AB Handshake Corporation AB Handshake 11/10/22 Ad Hoc Telecom Users Committee Ad Hoc 11/10/22 Aigbe Omoigui et al Omoigui Express Comment 10/11/22 American Association of Political AAPC 11/10/22 Consultants American Bankers Association, ACA ABA Joint Commenters 11/10/22 International, American Financial Services Association, Credit Union National Association, Mortgage Bankers Association, National Association of Federally-Insured Credit Unions, National Council of Higher Education Resources, and Student Loan Servicing Alliance Anna K. Anna K. Express Comment 10/18/22 Anonymous 10/13/22 Belle Hillenburg Hillenburg 10/10/22 Blooston Rural Carriers Blooston 11/10/22 Cameron Boyd Boyd Express Comment 11/9/22 CallFire, Inc. (EZ Texting) EZ Texting 11/10/22 Campaign Verify, Inc. Campaign Verify 11/10/22 Cloud Communications Alliance Cloud Communications 11/10/22 Coalition for Open Messaging Coalition for Open 11/10/22 Messaging Competitive Carriers Association CCA 11/10/22 Consumer Relations Consortium CRC 11/9/22 CTIA—The Wireless Association® CTIA 11/10/22 Electronic Privacy Information Center NCLC/EPIC Joint 11/10/22 (EPIC), the National Consumer Law Commenters (NCLC) on behalf of its low-income clients, Consumer Action, Consumer Federation of America, National Association of Consumer Advocates, National Consumers League, Public Knowledge, and U.S. PIRG 29 Federal Communications Commission FCC 23-21 INCOMPAS INCOMPAS 11/10/22 iconectiv, LLC iconectiv 11/10/22 Messaging Malware Mobile Anti- M3AAWG 11/8/22 Abuse Working Group National Opinion Research Center NORC 11/10/22 NetNumber, Inc. NetNumber 11/10/22 Neustar, Inc. Neustar 11/10/22 NTCA—The Rural Broadband NTCA 11/10/22 Association Pinger, Inc. Pinger 11/9/22 Professional Associations for PACE 11/10/22 Customer Engagement Rebekah Schmidt Schmidt 11/21/22 Sinch America, Inc. Sinch 11/10/22 Somos, Inc. Somos 11/10/22 State Voices State Voices 11/10/22 Telesign Corporation Telesign 11/9/22 Terra Nova Telecom, Inc. Terra Nova 11/10/22 Texas 9-1-1 Alliance, the Texas Texas 911 Entities 11/10/22 Commission on State Emergency Communications, and the Municipal Emergency Communication Districts Association T-Mobile USA, Inc. T-Mobile 11/10/22 Verizon Verizon 11/10/22 Voice on the Net Coalition VON 11/10/22 WMC Global WMC 10/21/22 Reply Commenter Abbreviated Name Date Filed ACT│The App Association App Association 12/9/22 AT&T Services, Inc. AT&T 12/9/22 Campaign Registry, Inc. Campaign Registry 12/9/22 Cloud Communications Alliance Cloud Communications 12/9/22 CTIA—The Wireless Association® CTIA 12/9/22 Fifty-one State Attorneys General State AGs 12/9/22 INCOMPAS INCOMPAS 12/11/22 Infobip, Inc. Infobip 12/9/22 30 Federal Communications Commission FCC 23-21 NetNumber, Inc. NetNumber 12/9/22 National Consumer Law Center NCLC/EPIC Joint Reply 12/9/22 (NCLC), Electronic Privacy Information Center (EPIC) on behalf of NCLC’s low-income clients, Appleseed Foundation, Center for Responsible Lending, Consumer Action, Consumer Federation of America, Jacksonville Area Legal Aid, Inc. (FL), Legal Services of New Jersey, Mobilization for Justice (NY), Mountain State Justice (WV), National Association of Consumer Advocates, National Consumers League, Shriver Center on Poverty Law (IL), South Carolina Appleseed, Texas Appleseed, Tzedek DC, U.S. PIRG, and Virginia Poverty Law Center. National Opinion Research Center NORC 12/9/22 Overwhelmed Citizen 11/28/22 Public Knowledge Public Knowledge 11/25/22 Rural Wireless Association, Inc. RWA 12/9/22 Twilio, Inc. Twilio 12/9/22 Verizon Verizon 12/9/22 Vibes Media, LLC Vibes 12/9/22 Weave Communications, Inc. Weave 12/8/22 Ex Parte Filing/Congressional Abbreviated Name Date filed Letter from The Honorable Brian Schatz Letter 12/19/22 Schatz, U.S. Senate, to Jessica Rosenworcel, Chairwoman, Federal Communications Commission Letter from Nadejda Papernaia, AB AB Handshake 11/4 ex 11/4/22 Handshake Corp., to Marlene H. parte Dortch, Secretary, Federal Communications Commission (Nov. 4, 2022) Letter from Nadejda Papernaia, AB AB Handshake 12/13 ex 12/13/22 Handshake Corp., to Marlene H. parte Dortch, Secretary, Federal Communications Commission (Dec. 13, 2022) Letter from Harold Feld, Public Public Knowledge 12/5 ex 12/5/22 Knowledge, to Marlene H. Dortch, 31 Federal Communications Commission FCC 23-21 Secretary, Federal Communications parte Commission (Dec. 5, 2022) Letter from Margot Saunders, NCLC/EPIC 12/16 ex parte 12/16/22 National Consumer Law Center, to Marlene H. Dortch, Secretary, Federal Communications Commission (Dec. 16, 2022) Letter from Coalition for Open Coalition for Open 3/9/23 Messaging and State Voices to Messaging and State Marlene H. Dortch, Secretary, Voices Joint ex parte Federal Communications Commission (Mar. 9, 2023) Letter from Scott Bergmann, Senior CTIA 3/8/23 ex parte 3/8/23 Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 7, 2023) Letter from Leah Dempsey, Counsel, ACA Joint ex parte 3/9/23 ACA International, Elizabeth M. Sullivan, Senior Director of Advocacy and Counsel, Credit Union National Association, Celia Winslow, Senior Vice President, American Financial Services Association, Ann Petros, Vice President of Regulatory Affairs, National Association of Federally-Insured Credit Unions to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023) Letter from Yaron Dori, Covington Quinstreet ex parte 3/9/23 and Burling, LLP, counsel to Quinstreet, Inc., to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023) Letter from Angela Simpson, Senior CCA ex parte 3/9/23 Vice President and General Counsel, Competitive Carriers Association to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023) Letter from Michele A. Shuster, PACE ex parte 3/9/23 MacMurray and Shuster, counsel for Professional Associations for Customer Engagement to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 32 Federal Communications Commission FCC 23-21 9, 2023) Letter from Eric J. Troutman, REACH ex parte 3/9/23 President, Responsible Enterprises Against Consumer Harassment to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 9, 2023) Letter from Christopher L. Shipley, INCOMPAS Joint ex parte 3/10/23 INCOMPAS; David Casem, Telnyx; Paula Boyd, Microsoft; Helen Marie Berg, Google, Michael Pryor, Cloud Communications Alliance; Greg Rogers, Bandwidth to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 10, 2023) Letter from Scott Bergmann, Senior CTIA 3/10/23 ex parte 3/10/23 Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 10, 2023) Letter from Scott Bergmann, Senior CTIA 3/12/23 ex parte 3/12/23 Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, Federal Communications Commission (Mar. 12, 2023) 33 Federal Communications Commission FCC 23-21 APPENDIX C Proposed Rules PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS Subpart L—Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising 1. Amend § 64.1200 by revising section (e) to add “or texts” to read as follows: (e) The rules set forth in paragraph (c) and (d) of this section are applicable to any person or entity making telephone solicitations or telemarketing calls or texts to wireless telephone numbers to the extent described in the Commission’s Report and Order, CG Docket No. 02–278, FCC 03–153, “Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991.” 2. Amend § 64.1200 by revising section (f)(9) to read as follows: (f)(9) 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. 34 Federal Communications Commission FCC 23-21 APPENDIX D Final Regulatory Flexibility Analysis 1. As required by the Regulatory Flexibility Act of 1980,1 as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM).2 The Federal Communications Commission (Commission) sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments in response to the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.3 A. Need for, and Objectives of, the Report and Order 2. The Order requires mobile wireless providers to block texts, at the network level, that purport to be from numbers on a reasonable Do-Not-Originate (DNO) list. Such texts are highly likely to be illegal and for that reason the Commission is adopting a requirement to block at the network level. The Order also requires providers and other entities to maintain a point of contact for texters to report erroneously blocked texts. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 3. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA. C. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration 4. None. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. 5. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding. D. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 6. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.4 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.6 A “small 1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). 2 Targeting and Eliminating Unlawful Text Messages, CG Docket No. 21-402, Notice of Proposed Rulemaking, FCC 22-72, 2022 WL 4545905 (2022) (NPRM). 3 See 5 U.S.C. § 604. 4 5 U.S.C. § 603(b)(3). 5 5 U.S.C. § 601(6). 6 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 35 Federal Communications Commission FCC 23-21 business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.7 7. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, at the outset, three broad groups of small entities that could be directly affected herein.8 First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration’s (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees.9 These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.10 8. Next, the type of small entity described as a “small organization” is generally “any not- for-profit enterprise which is independently owned and operated and is not dominant in its field.”11 The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations.12 Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.13 9. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”14 U.S. Census Bureau data from the 2017 Census of Governments15 indicate there were 90,075 local governmental jurisdictions consisting of general 7 15 U.S.C. § 632. 8 See 5 U.S.C. § 601(3)-(6). 9 See SBA, Office of Advocacy, Frequently Asked Questions, “What is a small business?,” https://cdn.advocacy.sba.gov/wp-content/uploads/2021/11/03093005/Small-Business-FAQ-2021.pdf (Nov 2021). 10 Id. 11 See 5 U.S.C. § 601(4). 12 The IRS benchmark is similar to the population of less than 50,000 benchmark in 5 U.S.C § 601(5) that is used to define a small governmental jurisdiction. Therefore, the IRS benchmark has been used to estimate the number small organizations in this small entity description. See Annual Electronic Filing Requirement for Small Exempt Organizations – Form 990-N (e-Postcard), “Who must file,” https://www.irs.gov/charities-non-profits/annual- electronic-filing-requirement-for-small-exempt-organizations-form-990-n-e-postcard. We note that the IRS data does not provide information on whether a small exempt organization is independently owned and operated or dominant in its field. 13 See Exempt Organizations Business Master File Extract (EO BMF), “CSV Files by Region,” https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf. The IRS Exempt Organization Business Master File (EO BMF) Extract provides information on all registered tax- exempt/non-profit organizations. The data utilized for purposes of this description was extracted from the IRS EO BMF data for businesses for the tax year 2020 with revenue less than or equal to $50,000 for Region 1-Northeast Area (58,577), Region 2-Mid-Atlantic and Great Lakes Areas (175,272), and Region 3-Gulf Coast and Pacific Coast Areas (213,840) that includes the continental U.S., Alaska, and Hawaii. This data does not include information for Puerto Rico. 14 See 5 U.S.C. § 601(5). 15 See 13 U.S.C. § 161. The Census of Governments survey is conducted every five (5) years compiling data for years ending with “2” and “7”. See also Census of Governments, https://www.census.gov/programs- surveys/cog/about.html. 36 Federal Communications Commission FCC 23-21 purpose governments and special purpose governments in the United States.16 Of this number, there were 36,931 general purpose governments (county,17 municipal, and town or township18) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts19 with enrollment populations of less than 50,000.20 Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”21 10. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves.22 Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services.23 The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees.24 U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year.25 Of that number, 2,837 firms employed fewer than 250 employees.26 Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, 16 See U.S. Census Bureau, 2017 Census of Governments – Organization Table 2. Local Governments by Type and State: 2017 [CG1700ORG02], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. Local governmental jurisdictions are made up of general purpose governments (county, municipal and town or township) and special purpose governments (special districts and independent school districts). See also tbl.2. CG1700ORG02 Table Notes_Local Governments by Type and State_2017. 17 See id. at tbl.5. County Governments by Population-Size Group and State: 2017 [CG1700ORG05], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 2,105 county governments with populations less than 50,000. This category does not include subcounty (municipal and township) governments. 18 See id. at tbl.6. Subcounty General-Purpose Governments by Population-Size Group and State: 2017 [CG1700ORG06], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 18,729 municipal and 16,097 town and township governments with populations less than 50,000. 19 See id. at tbl.10. Elementary and Secondary School Systems by Enrollment-Size Group and State: 2017 [CG1700ORG10], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 12,040 independent school districts with enrollment populations less than 50,000. See also tbl.4. Special-Purpose Local Governments by State Census Years 1942 to 2017 [CG1700ORG04], CG1700ORG04 Table Notes_Special Purpose Local Governments by State_Census Years 1942 to 2017. 20 While the special purpose governments category also includes local special district governments, the 2017 Census of Governments data does not provide data aggregated based on population size for the special purpose governments category. Therefore, only data from independent school districts is included in the special purpose governments category. 21 This total is derived from the sum of the number of general purpose governments (county, municipal and town or township) with populations of less than 50,000 (36,931) and the number of special purpose governments - independent school districts with enrollment populations of less than 50,000 (12,040), from the 2017 Census of Governments - Organizations tbls.5, 6 & 10. 22 See U.S. Census Bureau, 2017 NAICS Definition, “517312 Wireless Telecommunications Carriers (except Satellite),” https://www.census.gov/naics/?input=517312&year=2017&details=517312. 23 Id. 24 See 13 CFR § 121.201, NAICS Code 517312 (as of 10/1/22, NAICS Code 517112). 25 See U.S. Census Bureau, 2017 Economic Census of the United States, Employment Size of Firms for the U.S.: 2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePrevie w=false. 26 Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that meet the SBA size standard. 37 Federal Communications Commission FCC 23-21 as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services.27 Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees.28 Consequently, using the SBA’s small business size standard, most of these providers can be considered small entities. 11. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation.29 This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems.30 Providers of Internet services (e.g. dial-up ISPs) or voice over Internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry.31 The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small.32 U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year.33 Of those firms, 1,039 had revenue of less than $25 million.34 Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small. E. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements for Small Entities 12. This Order may include new or modified information collection requirements. The Order adopts a requirement that mobile wireless providers block texts purporting to be from NANP numbers on a reasonable DNO list, which include numbers that purport to be from invalid, unallocated, or unused numbers, and NANP numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked. In addition, the Order requires providers to establish a point of contact for senders to resolve issues of erroneously blocked texts. To the extent these new requirements constitute an information collection, such collection will not present a substantial burden for small business concerns with fewer than 25 employees; any such burdens would be far outweighed by the benefits to consumers from blocking text messages that are highly likely to be illegal. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 13. The RFA requires an agency to describe any significant alternatives that it has considered 27 Federal-State Joint Board on Universal Service, Universal Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf. 28 Id. 29 See U.S. Census Bureau, 2017 NAICS Definition, “517919 All Other Telecommunications,” https://www.census.gov/naics/?input=517919&year=2017&details=517919. 30 Id. 31 Id. 32 See 13 CFR § 121.201, NAICS Code 517919 (as of 10/1/22, NAICS Code 517810). 33 See U.S. Census Bureau, 2017 Economic Census of the United States, Selected Sectors: Sales, Value of Shipments, or Revenue Size of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 517919, https://data.census.gov/cedsci/table?y=2017&n=517919&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePrevie w=false. 34 Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that meet the SBA size standard. We also note that according to the U.S. Census Bureau glossary, the terms receipts and revenues are used interchangeably, see https://www.census.gov/glossary/#term ReceiptsRevenueServices. 38 Federal Communications Commission FCC 23-21 in reaching its approach, which may include the following four alternatives, among others: “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”35 14. The Order requires mobile wireless providers to block texts, at the network level, that purport to be from numbers on a reasonable Do-Not-Originate list. Such texts are highly likely to be illegal and for that reason the Commission is adopting a requirement to block at the network level. The Commission recognizes that mobile wireless providers, including small entities, already take measures to block illegal text messages from reaching their customers’ phones and this requirement should not be burdensome. The Order also requires providers and other entities to establish a point of contact for texters to report erroneously blocked texts. Because many of these providers and entities maintain a point of contact for call blocking purposes, and because the Order states that providers and entities may use the same point of contact for the text blocking requirement, the requirement should not be burdensome. F. Report to Congress 15. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act.36 In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. The Order and FRFA (or summaries thereof) will also be published in the Federal Register.37 35 5 U.S.C. § 603(c)(1)–(c)(4). 36 See 5 U.S.C. § 801(a)(1)(A). 37 See id. § 604(b). 39 Federal Communications Commission FCC 23-21 APPENDIX E Initial Regulatory Flexibility Analysis 1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA)1 the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies proposed in this Further Notice of Proposed Rulemaking (FNPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided on the first page of the FNPRM. The Commission will send a copy of this entire FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).2 In addition, the FNPRM and the IRFA (or summaries thereof) will be published in the Federal Register.3 A. Need for, and Objectives of, the Proposed Rules 2. The Notice seeks comment on several issues, specifically, (i) whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams; (ii) text message authentication; (iii) extending Do-Not-Call protections to marketing text messages; and (iv) banning the practice of obtaining a single consumer consent as justification for calls and texts from multiple sellers and potential fraudsters. B. Legal Basis 3. This action, including publication of proposed rules, is authorized under sections 4(i), 4(j), 201(b), 227(e), 254, 257, 301, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 201(b), 227(e), 254, 257, 301, and 303. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 4. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.4 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.6 A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.7 5. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, at 1 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, was amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996) 2 5 U.S.C. § 603(a). 3 Id. 4 5 U.S.C. § 603(b)(3). 5 5 U.S.C. § 601(6). 6 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 7 15 U.S.C. § 632. 40 Federal Communications Commission FCC 23-21 the outset, three broad groups of small entities that could be directly affected herein.8 First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration’s (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees.9 These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.10 6. Next, the type of small entity described as a “small organization” is generally “any not- for-profit enterprise which is independently owned and operated and is not dominant in its field.”11 The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations.12 Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.13 7. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”14 U.S. Census Bureau data from the 2017 Census of Governments15 indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States.16 Of this number, there were 8 See 5 U.S.C. § 601(3)-(6). 9 See SBA, Office of Advocacy, Frequently Asked Questions, “What is a small business?,” https://cdn.advocacy.sba.gov/wp-content/uploads/2021/11/03093005/Small-Business-FAQ-2021.pdf. (Nov 2021). 10 Id. 11 See 5 U.S.C. § 601(4). 12 The IRS benchmark is similar to the population of less than 50,000 benchmark in 5 U.S.C § 601(5) that is used to define a small governmental jurisdiction. Therefore, the IRS benchmark has been used to estimate the number small organizations in this small entity description. See Annual Electronic Filing Requirement for Small Exempt Organizations – Form 990-N (e-Postcard), “Who must file,” https://www.irs.gov/charities-non-profits/annual- electronic-filing-requirement-for-small-exempt-organizations-form-990-n-e-postcard. We note that the IRS data does not provide information on whether a small exempt organization is independently owned and operated or dominant in its field. 13 See Exempt Organizations Business Master File Extract (EO BMF), “CSV Files by Region,” https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf. The IRS Exempt Organization Business Master File (EO BMF) Extract provides information on all registered tax- exempt/non-profit organizations. The data utilized for purposes of this description was extracted from the IRS EO BMF data for businesses for the tax year 2020 with revenue less than or equal to $50,000 for Region 1-Northeast Area (58,577), Region 2-Mid-Atlantic and Great Lakes Areas (175,272), and Region 3-Gulf Coast and Pacific Coast Areas (213,840) that includes the continental U.S., Alaska, and Hawaii. This data does not include information for Puerto Rico. 14 See 5 U.S.C. § 601(5). 15 See 13 U.S.C. § 161. The Census of Governments survey is conducted every five (5) years compiling data for years ending with “2” and “7”. See also Census of Governments, https://www.census.gov/programs- surveys/cog/about.html. 16 See U.S. Census Bureau, 2017 Census of Governments – Organization Table 2. Local Governments by Type and State: 2017 [CG1700ORG02], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. Local governmental jurisdictions are made up of general purpose governments (county, municipal and town or township) and special purpose governments (special districts and independent school districts). See also tbl.2. CG1700ORG02 Table Notes Local Governments by Type and State_2017. 41 Federal Communications Commission FCC 23-21 36,931 general purpose governments (county,17 municipal, and town or township18) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts19 with enrollment populations of less than 50,000.20 Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”21 8. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves.22 Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services.23 The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees.24 U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year.25 Of that number, 2,837 firms employed fewer than 250 employees.26 Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services.27 Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees.28 Consequently, using the SBA’s small business size standard, most of these providers can be 17 See id. at tbl.5. County Governments by Population-Size Group and State: 2017 [CG1700ORG05], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 2,105 county governments with populations less than 50,000. This category does not include subcounty (municipal and township) governments. 18 See id. at tbl.6. Subcounty General-Purpose Governments by Population-Size Group and State: 2017 [CG1700ORG06], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 18,729 municipal and 16,097 town and township governments with populations less than 50,000. 19 See id. at tbl.10. Elementary and Secondary School Systems by Enrollment-Size Group and State: 2017 [CG1700ORG10], https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. There were 12,040 independent school districts with enrollment populations less than 50,000. See also tbl.4. Special-Purpose Local Governments by State Census Years 1942 to 2017 [CG1700ORG04], CG1700ORG04 Table Notes_Special Purpose Local Governments by State_Census Years 1942 to 2017. 20 While the special purpose governments category also includes local special district governments, the 2017 Census of Governments data does not provide data aggregated based on population size for the special purpose governments category. Therefore, only data from independent school districts is included in the special purpose governments category. 21 This total is derived from the sum of the number of general purpose governments (county, municipal and town or township) with populations of less than 50,000 (36,931) and the number of special purpose governments - independent school districts with enrollment populations of less than 50,000 (12,040), from the 2017 Census of Governments - Organizations tbls.5, 6 & 10. 22 See U.S. Census Bureau, 2017 NAICS Definition, “517312 Wireless Telecommunications Carriers (except Satellite),” https://www.census.gov/naics/?input=517312&year=2017&details=517312. 23 Id. 24 See 13 CFR § 121.201, NAICS Code 517312 (as of 10/1/22, NAICS Code 517112). 25 See U.S. Census Bureau, 2017 Economic Census of the United States, Employment Size of Firms for the U.S.: 2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517312, https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePrevie w=false. 26 Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that meet the SBA size standard. 27 Federal-State Joint Board on Universal Service, Universal Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf. 28 Id. 42 Federal Communications Commission FCC 23-21 considered small entities. 9. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation.29 This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems.30 Providers of Internet services (e.g. dial-up ISPs) or voice over Internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry.31 The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small.32 U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year.33 Of those firms, 1,039 had revenue of less than $25 million.34 Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 10. This Notice may include a change to the Commission’s current information collection, reporting, recordkeeping, or compliance requirements. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 11. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for such small entities.” 12. The Notice seeks comment on (i) whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams; (ii) text message authentication; (iii) extending Do-Not-Call protections to marketing text messages; and (iv) banning the practice of obtaining a single consumer consent as justification for calls and texts from multiple sellers and potential fraudsters. 13. These proposals would probably not be burdensome for small entities. The proposal to require those seeking consent from consumers to a list of entities, to clearly and conspicuously display the 29 See U.S. Census Bureau, 2017 NAICS Definition, “517919 All Other Telecommunications,” https://www.census.gov/naics/?input=517919&year=2017&details=517919. 30 Id. 31 Id. 32 See 13 CFR § 121.201, NAICS Code 517919 (as of 10/1/22, NAICS Code 517810). 33 See U.S. Census Bureau, 2017 Economic Census of the United States, Selected Sectors: Sales, Value of Shipments, or Revenue Size of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 517919, https://data.census.gov/cedsci/table?y=2017&n=517919&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePrevie w=false. 34 Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that meet the SBA size standard. We also note that according to the U.S. Census Bureau glossary, the terms receipts and revenues are used interchangeably, see https://www.census.gov/glossary/#term ReceiptsRevenueServices. 43 Federal Communications Commission FCC 23-21 list where consent is requested would, if adopted, prevent those lead generators or telemarketers from failing to advise the consumer of the list of entities; instead the list would be displayed where the consent is requested. This should not be burdensome to small entities, as it merely requires disclosing the list where consent is requested, instead of in a hyperlink, and should reduce unwanted text messages and calls to consumers. The proposal to include texts in the DNC rules should not have an impact on small entities. Wireline and wireless phones are already included and this would just clarify that not only calls to wireless phones on the DNC list are covered, but text messages, too. The Commission anticipates that these rules, if adopted, would also reduce unwanted calls and texts to small entities. The proposal to require service providers to block texts after notice from the Commission of suspected illegality, including fraud should not be burdensome for small entities. Mobile wireless providers are already diligent in blocking fraudulent calls and texts to their customers and this would assist them in those efforts. F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules 14. None. 44 Federal Communications Commission FCC 23-21 STATEMENT OF CHAIRWOMAN JESSICA ROSENWORCEL Re: Targeting and Eliminating Unlawful Text Messages, CG Docket No. 21-402; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02- 278; Report and Order and Further Notice of Proposed Rulemaking (March 16, 2023) More than a century ago, physiologist Ivan Pavlov did a series of experiments with food, buzzers, and dogs. He was able to train the dogs to associate a buzzing noise with food, so much so that they began to drool whenever they heard this sound, even if there was no food around. Sometimes I wonder what Pavlov would think about us and our smartphones. Because most of us are conditioned to reach for our phones anytime we hear the familiar buzz telling us a text is incoming. In our defense, those noises have become an effective way to stay connected. They help us keep up with family and friends and receive timely information from those we trust. But there are those who want to take advantage of this trust—and our instinct, like the subjects of Pavlov’s experiment, to assume something needs attention every time we hear our devices buzz. We see this clearly in the growing number of junk texts showing up on our phones. Scam artists have found that sending us messages about a package you never ordered or a payment that never went through along with a link to a shady website is a quick and easy way to get us to engage on our devices and fall prey to fraud. These robotexts are making a mess of our phones. They are reducing trust in a powerful way to communicate. So today we take our first step to stop these unwanted texts at the network level. We put in place rules that require mobile wireless carriers to block texts that come from invalid, unallocated, or unused numbers. In other words, we require providers to stop the texts that are most likely to be illegal. This approach has the support of Attorneys General from all 50 states and the District of Columbia. It’s good stuff. But we are not stopping here. Because we also adopt a rulemaking to explore other way stop unwanted text messages, including authentication measures and rules to prevent the abuse of consumer consent. Thank you to those at the agency who worked on this effort, including Mika Savir, Kim Wild, James Brown, Zac Champ, Kristi Thornton, Aaron Garza, Mark Stone, and Jerusha Burnett from the Consumer and Governmental Affairs Bureau; Rakesh Patel, Lisa Zaina, Daniel Stepanicich, Kristi Thompson, Cait Barbas, Jessica Manuel, and Alexander Hobbs from the Enforcement Bureau; Susanna Larson, Garnet Hanley, Kari Hicks, and Jennifer Salhus from the Wireless Telecommunications Bureau; Elizabeth Drogula, Jonathan Lechter, and Connor Ferraro from the Wireline Competition Bureau; Kenneth Carlberg and David Furth from the Public Safety and Homeland Security Bureau; Joycelyn James, Cara Grayer and Joy Ragsdale from the Office of Communications Business Opportunities; Emily Talaga, Kim Makuch, Mark Montano, Michelle Schaefer, Patrick Brogan from the Office of Economics and Analytics; and Derek Yeo, Bill Richardson, Rick Mallen, and Valerie Hill from the Office of General Counsel. 45 Federal Communications Commission FCC 23-21 STATEMENT OF COMMISSIONER GEOFFREY STARKS Re: Targeting and Eliminating Unlawful Text Messages, CG Docket No. 21-402; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02- 278; Report and Order and Further Notice of Proposed Rulemaking (March 16, 2023) Texting is increasingly becoming Americans’ preferred way to communicate.1 But unfortunately, as we’ve seen before, the more popular a communications service is, the more it’s targeted by spammers and bad actors. The rise of robotexts – unwanted or illegal text messages – means a similar rise in harm to consumers, in the form of phishing attacks, malware, and scams. And robotexts are different than robocalls. Recipients of a robocall have the ability to either pick up the phone or not. But on most devices, recipients of a robotext see at least some of an unwanted message immediately, exposing them – and potentially luring them into – harm. And you know as well as I do that we’ve been getting more of these unwanted texts. In 2022, Americans received over 225 billion robotexts – a 157 percent year-over-year increase, and a 307 percent increase from 2020.2 Last month, February 2023, 10.7 billion spam texts were reported – nearly 39 for every person in the United States.3 Given this growth, failure to act could lead to robotexting to become so pervasive that it negatively affects texting, just as robocalls have done for phone calls. I can confidently say that’s the last thing we want. It is time for the Commission to act. We build upon our experience combatting robocalls, and today move to protect consumers from the threat of illegal or harmful robotexts. Industry has taken impressive steps on its own, but more needs to be done. The item we adopt today will require providers, at the network level, to take important steps to stop robotexts before they reach consumers. Adopting mandatory blocking of texts that are highly likely to be illegal based on a Do-Not-Originate list based on invalid, unallocated, or unused numbers is a reasonable first step to stem the flow of these texts. At the same time, we require providers to adopt a single point of contact for texters to report erroneously blocked messages, to balance the needs of industry and consumers. And finally, we recognize that this is just the first step, and seek additional comment on further proposals to protect consumers. I will stay vigilant in pushing the Commission to do all it can to eliminate these illegal and unwanted text messages going forward, especially at a time where we have seen the expansion of texting to 988 and as part of NG911. I thank the Commission staff who work on robocall and robotext issues – I know there are many – for their hard work. I approve. 1 Aaron Weiche, SURVEY: Texting Is The Preferred Way To Communicate, Leadferno, https://leadferno.com/blog/survey-texting-is-the-preferred-way-to-communicate (last visited Mar. 14, 2023). 2 Robokiller, The Robokiller phone scam report: 2022 insights & analysis, https://www.robokiller.com/robokiller- 2022-phone-scam-report (last visited Mar. 14, 2023). 3 Robokiller, 2023 United States robotext trends, https://www.robokiller.com/spam-text-insights (last visited Mar. 14, 2023). 46 Exhibit B Before the FEDERAL COMMUNICATION COMMISSION Washington, DC 20544 In the Matter of ) ) Targeting and Eliminating Unlawful ) Text Messages ) CG Docket No. 21-402 ) Rules and Regulations Implementing the ) Telephone Consumer Protection Act of 1991 ) CG Docket No. 02-278 REPLY COMMENTS OF 28 STATE ATTORNEYS GENERAL I. INTRODUCTION The undersigned State Attorneys General (“State AGs”) submit these Reply Comments in response to the Public Notice issued by the Consumer and Governmental Affairs Bureau,1 seeking comment on the Federal Communication Commission’s (“Commission”) proposals to, inter alia, “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.”2 Consistent with our respective and collective offices’ efforts in combatting illegal robocalls and text messages, and in response to those commenters advocating for measures that will provide lesser protection for consumers, the State AGs support the Commission’s intended goal of eliminating the current practices of the lead generation industry, unscrupulous voice service providers, and illegal robocallers that abuse the Commission’s rules governing prior express 1 Further Notice of Proposed Rulemaking, Targeting and Eliminating Unlawful Text Messages, CG Docket No. 21-402, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, March 16, 2023 (“March 2023 FNPRM”). 2 March 2023 FNPRM at 22, ¶ 58. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 1 of 41 written consent. In addition, the State AGs offer comments concerning the Commission’s proposals with respect to text messaging. II. PRIOR EXPRESS WRITTEN CONSENT A. The Lead Generation Problem Telemarketers, voice service providers, and scammers need people to call (or text). Thus, lead generation has proliferated into a billion-dollar industry3 and has become a necessary component of the robocall ecosystem. Most obviously, there is the person or entity interested in placing calls to potentially solicit customers for any number of products or services or to swindle consumers into parting with their hard-earned money or personal information. Whether for telemarketing or for scams, the entity that wants to place the calls needs to select the phone numbers to call, needs technology to dial the calls en masse, and needs a voice service provider to connect the calls to the recipients. Each of these necessary functions is routinely outsourced to providers all over the globe, who facilitate and profit from facilitating robocalls. A few months into the global COVID-19 pandemic, Assurance IQ, LLC (“Assurance”), an insurance company, filed a petition with the Commission seeking an expedited ruling regarding what constitutes prior express consent under the Telephone Consumer Protection Act (“TCPA”).4 In its Petition, Assurance requested the Commission confirm that “where it is determined that a calling party has sufficient information to establish a reasonable basis to believe that they have 3 Lead generation involves collecting personal information, including telephone numbers, from consumers and then selling that information to third parties who want to use the leads to generate business. See also https://www.statista.com/statistics/190328/us-online-lead-generation-spending-forecast-2010-to-2015/ (Accessed April 18, 2023). 4 Petition for Expedited Declaratory Ruling Regarding the Application of 47 U.S.C § 227(b)(1) of the Telephone Consumer Protection Act, CG Docket 02-278, May 12, 2020 (“Petition”). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 2 of 41 valid consent to make the call, the caller may rely on that consent for TCPA purposes until such time as the called party claims to the caller that he or she did not provide the consent.”5 In its Petition, Assurance outlined its process for obtaining prior express consent from consumers, as follows: Consumers seeking quotes through one of [Assurance’s] web sites…are first required to answer questions to provide information relevant to the formulation of a needs assessment. This information includes the customer’s name, telephone number…address, and [originating IP-address]…At the final step, in order to receive an online quote, the consumer sees, immediately above the submit or “get my quote” button, the statement, “By Clicking View My Quote, I agree to the below consents.” Adjacent to that button, the consumer sees the following: .6 5 Petition at 1 (internal citation omitted). 6 Petition at 2-3. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 3 of 41 Typically, a consumer is not required to click on the “partner companies” hyperlink, nor the hyperlinks for the “Terms and Conditions” or “Privacy Policy,” in order to click on the “View My Quote” button. If a discerning consumer clicks on the link for “partner companies,” Assurance redirects the consumer to a separate webpage,7 wherein Assurance lists over 2,100 company names.8 By simply requesting an insurance quote from Assurance via a web inquiry, Assurance has opened the floodgates for an unwitting consumer to receive thousands upon thousands of robocalls, emails, or text messages from not only Assurance and “its agents, representatives and affiliates” (whoever they are), but “other insurance companies or their agents” (whoever they are), as well as the 2,100+ companies. In reviewing the list of Assurance “partner companies,” it is readily apparent that not all of these companies sell insurance products. Without performing an exhaustive internet search of all 2,100+ names, it appears that the list of partner companies includes businesses that sell automobile warranties or service contracts, solar panels, digital advertising, and debt relief services, to name a few. Interestingly enough, the list also appears to include lead generation and marketing companies, as well as companies with wholly generic names, such as ‘American,’ ‘Builders,’ ‘Electric,’ ‘Erie,’ ‘Fabric,’ ‘Facility,’ ‘Federal,’ ‘Inc.,’ and ‘LLC,’ to name a few. One can only speculate as to why such a list would contain such generic names.9 7 https://assurance.com/tcpa-partner-companies (accessed March 28, 2023). 8 See State AG Reply Comment - Exhibit 1, attached. 9 See State of Ohio v. Aaron Michael Jones, et al., 2:22-cv-02700-ALM-KAJ (S.D.Oh. 2022), Complaint, 7/7/2022 at ¶ 69 (alleging that when a VoIP provider of an illegal robocaller had to respond to an ITG traceback request, the robocaller needed to “buy some time” before responding in order to add “auto services” language to the list of opt-in websites in the terms and conditions). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 4 of 41 Assurance’s business practice is not an anomaly. Telemarketers (and some voice service providers10) typically rely on the purported consent provided through data brokers, bots, or weblinks on websites. Various parties create marketing websites with consent forms and then sell the data (i.e., names and phone numbers) to intermediary ‘aggregators,’ who compile the lead data from multiple website publishers and then sell the data to other aggregators, and so on, until the telemarketers purchase the leads for solicitation purposes.11 Multiple filers submitted comments into the record in response to Assurance’s Petition, providing examples and greater explanation of these practices.12 10 See Order, In the Matter of Urth Access, LLC, File No. EB-TCD-22-00034232, December 8, 2022, at 6- 7, ¶¶ 15-16 (Urth Access, a voice service provider sanctioned by the Commission, claimed, in response to a Traceback, that its customers obtained consent for student loan robocalls. Urth Access provided the Traceback group with purported consent logs that included website addresses through which the illegal robocallers captured the called party’s consent. However, the Commission recognized that none of the websites had any connection to student loan assistance, but rather, concerned health insurance products/services. The Commission also recognized that the consent logs failed to provide adequate disclosure that would constitute valid consent, as required by the Commission’s rules. The websites included TCPA consent disclosures whereby the consumer agreed to receive robocalls from “marketing partners.” These marketing partners were only visible to the consumer if the consumer clicked on a specific hyperlink to a second website that contained the names of 5,329 entities.) 11 See generally “Follow the Lead” Workshop, Staff Perspective (Sept. 2016) at Staff Perspective: "Follow the Lead" workshop - September 2016 (ftc.gov). 12 See, e.g., Letter from Timothy J. Sostrin, Keogh Law, to Marlene Dortch, Federal Commc’ns Comm’n, CG Docket No. 02-278 (Aug. 12, 2020); Reply Comments of James Shelton in Opposition to Petition for Expedited Declaratory Ruling filed by Assurance IQ, LLC, CG Docket No. 02-278 (filed July 6, 2020); Reply Comments of Joe Shields on the Assurance IQ LL Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (filed July 6, 2020); Comments of ZipDX LLC, CG Docket No. 02-278 (filed May 28, 2020); Letter from National Consumer Law Center, et al. to Marlene Dortch, Federal Commc’ns Comm’n, CG Docket No. 02-278 (Aug. 12, 2020); Letter from National Consumer Law Center, et al. to Marlene Dortch, Federal Commc’ns Comm’n (Oct. 4, 2022). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 5 of 41 B. The Commission’s Proposed Solution and Requests for Comment In the March 2023 FNPRM, the Commission proposes to amend 47 C.F.R. Section 64.1200(f)(9) by adding the below-emphasized language to the current rule: 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.13 In addition to comments on the proposed language set forth above, and whether or not it will “clarify consent” or “help to eliminate illegal text messages and calls,” the Commission seeks comment on alternatives to the proposed language that would better protect consumers from the harms of illegal robocalls or text messages.14 The Commission also seeks comment on the principle that prior express consent to receive robocalls or text messages must be made directly to one entity at a time.15 The Commission additionally asks a series of questions regarding how its proposed new language would affect consumer use of comparison-shopping websites. First, it requests comments on how it can ensure consumers “can consent to obtain further information from the 13 March 2023 FNPRM at 34, Appendix C; compare 47 CFR § 64.1200(f)(9). 14 March 2023 FNPRM at 23, ¶¶ 61 and 62. 15 Id. at 23, ¶ 61. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 6 of 41 site without receiving numerous calls and texts from unrelated companies.” Second, it requests that commenters discuss whether the new language would limit the value of comparison-shopping sites to consumers. Third, the Commission asks whether alternatives to the proposal exist that would better protect consumers from unwanted robocalls and texts that may result from use of comparison-shopping websites.16 The undersigned State AGs support the Commission’s consistent and long history of requiring that prior express written consent for telemarketing be directly between a specific consumer and one specific seller. Based upon our understanding of the TCPA, the Code of Federal Regulations (“Code”), and the Commission’s previous orders, there is no “lead generator loophole.” Rather, those who profit from the robocall ecosystem are ignoring established law. As such, the State AGs respectfully suggest that in lieu of amending the current language of Section 64.1200(f)(9) as proposed, the Commission instead clarify that the existing requirements for prior express written consent to receive robocalls and texts are in line with the principle that such consent must be made directly to one entity at a time. By doing so, the Commission will better protect consumers and avoid likely disputes over interpretation of the term “logically and topically associated.” The State AGs also believe that contrary to the opening comments offered by members of the telemarketing industry, the Commission’s proposed new language permitting consumer consent to apply to more than one seller at a time is not necessary for consumers to continue to enjoy the benefits of comparison-shopping websites. Rather, as addressed in Section C (iii) below, within the structure of the current rule, these websites can make slight shifts to how information is 16 Id. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 7 of 41 displayed in a way that continues to provide consumers the benefit of comparison, without subjecting them to unwanted robocalls and texts. C. Discussion (i) The Current Rules Require Consent to One Seller at a Time In 1991, Congress passed the TCPA to address consumer outrage “over the proliferation of intrusive, nuisance calls to their homes from telemarketers.”17 The TCPA provides that it is unlawful to make certain calls and texts18 using an automatic telephone dialing system19 or an artificial or prerecorded voice.20 In addition, the TCPA vests the Commission with authority to promulgate rules to implement this prohibition.21 Pursuant to this authority, the Commission determined that autodialed, prerecorded, or artificially voiced calls that introduce an advertisement or constitute telemarketing are illegal unless the called party has given “prior express written consent” to be called.22 The Code provides that the called party must provide permission to the seller. The Code defines “Seller” as “the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or 17 Public Law 102-243, 105 Stat 2394 (Dec. 20, 1991) at Section 2 (6). 18 In 2003, the Commission clarified that “calls” include text messages to wireless numbers. 2003 TCPA Order, 18 FCC Record at 14115, para. 165. 19 In Facebook v. Duguid, 141 S.Ct. 1163, 1171 (2021), the Supreme Court clarified that “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” 20 See 47 U.S.C. § 227(b)(1)(A) and (B). 21 47 U.S.C. 227(b)(2). 22 47 C.F.R. 64.1200(a)(2). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 8 of 41 services, which is transmitted to any person.”23 Furthermore, the Code defines “prior express written consent,” in relevant part, as “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 artificial or prerecorded voice… .”24 Hence, for advertising and telemarketing robocalls, the Code establishes that there must be express written consent by the called party to the seller. Next, the Code delineates the requirements for the written agreement as follows: (i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice …25 Courts interpret “clear and conspicuous” to mean a notice that would be apparent to the reasonable consumer, separate from advertising copy or other disclosures.26 The plain language of the existing rules makes clear that the Commission already intended for consent under the TCPA to be directly between a specific consumer and a specific seller. The Commission’s orders adopting these rules confirm this interpretation. For example, in 1995, in one of the first Commission orders implementing the TCPA, the Commission observed that 23 47 C.F.R. §64.1200(f)(10). 24 47 C.F.R. § 64.1200(f)(9) (emphasis added). 25 Id. (emphasis added). 26 See Lundbom v. Schwan’s Home Service, Inc., 2020 WL 2736419 (D. Or. 2020); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954-955 (9th Cir. 2009); Karpilovsky v. All Web Leads, Inc., No 17 C 1307, 2018 WL 3108884, *5 (N.D. Ill. 2018). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 9 of 41 although the statute does not define “express permission” or “invitation” from a consumer to permit telemarketing calls, Congress did not intend to allow telephone solicitation calls unless the called party (a) clearly stated that the telemarketer may call, and (b) clearly expressed an understanding that the telemarketer’s subsequent calls will be made for the purpose of encouraging the purchase of goods or services.27 Also, in its 2012 TCPA Order,28 the Commission declared it would “maximize consistency with the Federal Trade Commission’s (“FTC”) analogous Telemarketing Sales Rule (“TSR”)”29 by adopting its current rules on consent: Consistent with the FTC’s TSR, [the Commission concludes] that a consumer’s written consent to receive telemarketing robocalls must be signed and sufficient to show that the consumer: (1) received ‘clear and conspicuous disclosure’ of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates.30 27 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Record 12391, 12396 (Aug. 1995) at ¶11 (emphasis added). 28 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 27 FCC Record 1830, February 15, 2012 (“2012 TCPA Order”). https://docs.fcc.gov/public/attachments/FCC-12-21A1_Rcd.pdf 29 2012 TCPA Order, at 1831, ¶ 1. 30 Id. at 1844, ¶ 33 (emphasis added). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 10 of 41 The TSR also requires the seller to obtain prior express consent from the called party.31 When the FTC amended the TSR in 2008 to prohibit telemarketing calls delivering prerecorded messages without a consumer’s express written agreement to receive such calls, the FTC responded to consumer comments expressing concern for their contact information being shared with affiliates or other companies. The FTC unequivocally stated that a “consumer’s agreement with a seller to receive calls delivering prerecorded messages is non-transferrable. Any party other than that particular seller must negotiate its own agreement with the consumer to accept calls delivering prerecorded messages. Prerecorded calls placed to a consumer on the [National DNC Registry] by some third party that does not have its own agreement with the consumer would violate the TSR.”32 Like the amended TSR, the TCPA and the Code allow sellers and telemarketers to call any person whose number has been entered on the National DNC Registry if that person has given his or her “prior express invitation or permission” to call, in writing and signed.33 Consequently, the so-called “loophole” is just a figment of the lead generation industry’s 31 See 16 C.F.R. § 310.4(b)(1)(v)(A) (in order to initiate any outbound telephone calls that deliver prerecorded messages to induce the purchase of goods or services, the seller must obtain an express, written agreement from the called party). 32 See Federal Register, Vol. 73, No. 169, August 29, 2008, at 51182 (emphasis added); https://www.ftc.gov/business-guidance/resources/complying-telemarketing-sales- rule#prerecordedmessages. (“Does a consumer’s written agreement to receive prerecorded message calls from a seller permit others, such as the seller’s affiliates or marketing partners, to place such calls? No. The TSR requires that the written agreement identify the single “specific seller” authorized to deliver prerecorded messages. The authorization does not extend to other sellers, such as affiliates, marketing partners, or others. May a seller obtain a consumer’s written permission to receive prerecorded messages from a third-party, such as a lead generator? No. The TSR requires the seller to obtain permission directly from the recipient of the call. The seller cannot rely on third parties to obtain permission.”) 33 47 CFR 1200(c)(2)(ii) (emphasis added); see also, Report to Congress Pursuant to the Do No Call Implementation Act on Regulatory Coordination in Federal Telemarketing Laws Submitted by The Federal Trade Commission at 19 (“Like the amended TSR, the revised TCPA Regulations allow sellers and telemarketers to call any person whose number has been entered on the National Do Not Call Registry if that person has given his or her ‘prior express invitation or permission’ to call, in writing and signed.”). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 11 of 41 collective imagination. The State AGs respectfully submit that consent under the TCPA is between one specific consumer and one specific seller. In 2015, the Commission further put the consumer in command by clarifying that “a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur.”34 To allow third parties to gather consent would effectively limit the manner in which consumers who seek to revoke consent can do so. Consumers would be forced to first receive robocalls from a seller and then revoke consent individually to each seller. Third-party lead generators that gather consent for multiple sellers do not generally maintain a relationship with the sellers past the sale of consumer consent data, and thus, they cannot reliably transmit a revocation of consent from a consumer. As a result, if a consumer initially consents to receive robocalls through a third-party lead generator, or if fabricated consent is fraudulently provided to a third-party lead generator, then the consumer cannot subsequently revoke consent through the lead generator and is likely to receive an ongoing barrage of robocalls from sellers who purchase the consumer’s information. Consumers who, for example, wish to receive information on mortgage rates do not need or desire mortgage related solicitations in perpetuity. Rather, in most instances, the consumer will either refinance or purchase a home, or they will change their mind after some time and no longer wish to receive solicitations. However, when third-party lead generators collect and sell a consumer’s consent, the consumer cannot effectively revoke consent after the consumer’s need for mortgage information has passed. Rather, each time the lead generator sells the consumer’s information, and a seller 34 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; American Association of Healthcare Administrative Management, Petition for Expedited Declaratory Ruling and Exemption; et al, FCC 15-72, ¶ 48. https://docs.fcc.gov/public/attachments/FCC-15-72A1_Rcd.pdf. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 12 of 41 calls, the consumer must answer the unwanted robocall and revoke consent to the individual seller. This is another important reason why the Commission’s rules should not be amended to permit web-based consent from one consumer to apply to multiple sellers, even sellers of logically or topically related services. The March 2023 FNPRM suggests a clear line in the sand in its proposal to “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.” However, the State AGs respectfully submit that the Commission’s proposed solution will not achieve this result. Under the Commission’s proposed amendments, multiple entities would be legally permitted to rely on the consent provided to another, totally separate entity. Instead of hyperlinks to separate websites, it is likely that hundreds, if not thousands, of so-called ‘marketing partner’ names will be crammed onto consent pages. Sellers, telemarketers, and voice service providers will most likely declare such practice is ‘clear and conspicuous’ because all the consumer has to do to see the fine print is to click on the magnifying glass icon to increase the size of the font on the computer screen. In summary, the proposed amendment in Appendix C of the March 2023 FNPRM will not achieve the intended purpose, but it will open doors to new tricks and gimmicks. Instead, the Commission should simply clarify and reiterate that consent under the TCPA is between one specific consumer and one specific seller. If another seller wants consent to send robocalls to that consumer, then that other seller should independently obtain consent—no more hyperlinks, no more ‘marketing partners,’ and no more confusion. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 13 of 41 (ii) The Commission Should Confirm Compliance with the Federal E-Sign Act The Code also requires the written consent for telemarketing to comply with the federal Electronic Signatures in Global and National Commerce Act (“E-Sign Act”).35 The Code states that the called party’s “signature shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.”36 The E-Sign Act enables the validity and enforceability of electronic signatures. Pursuant to the E-Sign Act, an “electronic signature means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”37 Hence, basic E-Sign law requires that for every agreement made electronically, there be four separate elements to constitute consent: (1) an electronic sound or process, such as the click of a mouse; (2) that is attached to or logically associated with a contract or agreement; (3) executed or adopted by the person; (4) with the intent to sign the agreement. Simply put, one cannot intend to sign an agreement when one does not know what the agreement is. Consequently, extending permission for telemarketing to entities and for services that are not specifically identified on the webpage where the consumer clicks to give permission to a specific seller does not provide the requisite intent. In the Commission’s 2012 TCPA Order, the Commission concluded that “consent obtained in compliance with the E-Sign Act will satisfy the requirements of its revised rule, including permission obtained via an email, website form, text message, telephone keypress, or voice 35 15 U.S.C. § 7001, et seq. 36 47 C.F.R. § 64.1200(f)(9)(ii). 37 15 U.S.C. § 7006(5). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 14 of 41 recording.”38 The Commission further concluded that “[a]llowing documentation of written consent under the E-Sign Act [would] minimize the costs and burdens of acquiring prior express written consent for autodialed or prerecorded telemarketing calls while protecting the privacy interests of consumers.”39 In addition to restricting prior written consent for telemarketing to one specific seller, current Commission rules require the consent to be in writing and comply with federal E-Sign Act requirements. Accordingly, the undersigned State AGs request that the Commission reiterate that practices such as those employed by Assurance, as described above, violate Commission rules. Claims by “marketing partners” (listed on a separate webpage or website) that a consumer’s mouse click provided valid written consent for telemarketing are invalid. Moreover, because the E-Sign Act requires that the agreement be presented in writing,40 there is no authority for concocting oral consent during a robocall.41 (iii) Reaffirming that the Current Rule Already Requires One Consent to One Seller at a Time Will Not Limit the Value of Comparison- Shopping Sites to Consumers. As mentioned above, the Commission also requested the following input concerning its proposed modification of its rule regarding preexisting consumer consent to telemarketing calls and texts to allow one consent to apply to multiple sellers: Consumers may find comparison shopping websites helpful; how can we ensure that they can consent to obtain further information from the site without receiving numerous calls and texts from unrelated companies? Commenters should discuss whether our 38 Small Entity Compliance Guide, CG Docket No. 02-278, May 13, 2013 (“FCC Compliance Guide”), at p. 4; citing 2012 TCPA Order at 27 FCC Record 1830, 1844, ¶ 34. 39 FCC Compliance Guide, at 4. 40 15 U.S.C. § 7001(c)(1). 41 15 U.S.C. § 7001(c)(6). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 15 of 41 proposal would limit the value of comparison-shopping sites to consumers.42 In the opening comment period, several commenters that support or operate comparison- shopping websites supported modifying the rule to expand consent to multiple sellers, arguing that requiring one consent per consumer would reduce access to and increase the cost of credit, deprive consumers of choice, and stifle competition.43 For example, Lending Tree represents: [The] proposal will harm consumers, consumer welfare, and the competition that comparison-shopping websites promote among multiple providers and sellers. Such a limitation undermines the very reason that a consumer seeks out and visits a comparison- shopping website, which is to obtain simultaneous offers from multiple, competing sellers and providers, rather than having to shop from seller to seller on their own.”44 Similarly, Drips, which describes itself as a “conversational outreach platform that helps compliant businesses set appointments with consumers who have existing business relationships or provided written consent to be contacted for specific purposes,”45 claims: Suggesting that consent should only be able to be made in a 1:1 fashion is an oversimplification to a nuanced problem. This would effectively kill all comparison-shopping websites, consumer choice, and online marketplaces as we know it.46 42 March 2023 FNPRM at 23, ¶61. 43 See e.g., Comments of Lending Tree, LLC, CG Docket No. 02-278 (May 8, 2023) (“Lending Tree Comments”); Letter from Drips, CG Docket No. 02-278 (May 8, 2023) (“Drips Letter”); Letter from Online Lenders Alliance, CG Docket No. 02-278 (May 8, 2023). 44 Lending Tree Comments at 12. 45 Drips Letter at 1. 46 Id. at 3. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 16 of 41 The State AGs disagree that enforcing the existing rule would harm consumer welfare and “effectively kill all comparison-shopping websites.” Comparison-shopping websites such as Lending Tree provide a service to consumers by gathering potential credit options in one place, but they do not perform a hard credit pull and do not provide firm offers of credit. As a result, consent is not necessary for their services to be offered and any related benefit to be rendered. Rather, consumers could use these services and then select the lender or lenders they wish to hear from individually. It is not necessary that a consumer be required to agree to receive robocalls or robotexts from multiple, potentially hundreds of other lenders in order for them to access the services of comparison-shopping websites. Indeed, it is permissible under the current rules for a comparison-shopping site to collect express consent from individual sellers for telemarketing calls or texts on their websites. The website simply must clearly and conspicuously disclose the names of the sellers that may contact the consumer and ask the consumer to consent specifically to each seller from which they agree to receive calls or texts. The current rule does not prevent sellers from obtaining express consent. Therefore, the current rule does not undercut the business model insofar as that model relies on sellers obtaining specific consent from a consumer on a one-by-one basis. In short, enforcing the rules to require pre-existing written consent to call or text a consumer for purposes of telemarketing from one consumer to one seller at a time will not reduce consumer access to credit, deprive consumers of choice, or stifle competition in the comparison- shopping industry. Rather, enforcing the current rule better protects consumers by requiring that they proactively consent to receiving further information from other companies. The State AGs therefore ask the Commission to reject commenter claims that enforcing the current rule would impair the value of comparison-shopping sites to consumers. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 17 of 41 III. TEXT MESSAGES A. The Illegal Text Problem With the advent of mobile phones, the speed and the ease with which we communicate with others has increased exponentially. This increased speed creates circumstances that make consumers more vulnerable to robotext fraud. Consumers rely upon their mobile phones to receive communications that are characteristically short, but often important. As such, it is easier for bad actors to disguise their identities through a text message, in comparison to an illegal robocall or phishing e-mail. During a phone call or while reading an e-mail, the would-be victim has additional time to identify the scam, whereas this is not so with a short text message containing a malicious link. Simply by tapping (inadvertently or purposefully) the link in a text, consumers may expose their phones to malware and viruses. Given the amount of personal information contained on our cellular phones, the potential financial and personal privacy harms are vast. The evidence already before the Commission supports a need to enact effective rules to address the continuing threat scam robotexts pose to consumers. As the Commission recognized, the number of spam text messages that wireless providers blocked grew ten times, from an estimated 1.4 billion in 2015 to 14 billion in 2020.47 In addition, consumers have reported $231 million in losses from text message scams in the first three quarters of 2022, which is greater than the losses reported in 2020 and 2021 combined.48 47 March 2023 FNPRM at 3, ¶ 6. 48 Id. at 4, ¶ 6. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 18 of 41 To curb the onslaught of illegal robotexts, the Commission seeks comment on whether it should adopt processes similar to those in place for illegal robocalls. Specifically, the Commission proposes, inter alia, to require terminating providers to block texts from a sender after the providers are on notice from the Commission that the sender is sending illegal texts, and to extend the National Do-Not-Call (“DNC”) Registry’s protections to text messages.49 The State AGs commend the Commission’s attention to the particular issue of illegal robotexts, distinct from the issue of illegal robocalls, and support the Commission’s efforts to review, clarify, and refine rules that aim to enhance protections for consumers and honor their requests not to be bombarded by illegal robotexts. B. Blocking Texts upon Commission Notification In the March 2023 FNPRM, the Commission proposes to “require terminating mobile wireless providers to investigate and potentially block texts from a sender after they are on notice from the Commission that the sender is transmitting suspected illegal texts, similar to [the Commission’s] requirement for gateway providers with respect to voice calls.”50 Based on the Commission’s proposal, the State AGs presume that the Commission’s Enforcement Bureau would issue an official notice of suspected illegal texts to a terminating mobile wireless provider (“terminating provider”).51 The terminating provider would then promptly investigate the identified text(s) and either block the texts and substantially similar texts on an ongoing basis or 49 Id. at 3, ¶ 4. 50 Id. at 20, ¶ 50. 51 Id. at 20, ¶ 52. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 19 of 41 respond to the Commission that the terminating provider has a reasonable basis for concluding that the identified texts are not illegal.52 To begin, the State AGs support the principle that all entities in the wireless messaging ecosystem have an obligation to do their part to preserve the trust in, and utility of, messaging services.53 This includes those providers who ultimately deliver illegal texts to consumers. However, because State AGs, along with the Commission, also understand that the messaging and voice ecosystems each have significantly different infrastructures,54 we are mindful that comparable success in mitigating illegal robotexts may not precisely align with the playbook that has been so effectively devised and refined by the Commission to mitigate illegal robocalls. Therefore, to the extent that the Commission has determined that extending the robocall blocking protocols to robotexts will actually bring a measurable benefit to consumers across the country in preventing fraud, the State AGs support such a proposal. The State AGs further urge the Commission to continue exploring ways in which rules specific to the unique infrastructure, players, and technology of messaging and robotexting can be proposed and deployed to effectively and efficiently mitigate the continuing, burgeoning threat targeting our consumers. 52 Id. 53 See CTIA, Messaging Principles and Best Practices, https://www.ctia.org/the-wireless- industry/industry-commitments/messaging-interoperability-sms-mms (last visited May 2, 2023) (enumerating a set of voluntary best practices developed in July 2019 by CTIA, the messaging industry association, and its member companies throughout the wireless messaging ecosystem). 54 Reply Comments of Fifty-One (51) State Attorneys General, Targeting and Eliminating Unlawful Text Messages at 4, CG Docket No. 21-402 (Dec. 9, 2022). Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 20 of 41 C. Clarifying Do-Not-Call Protections for Text Messages To the extent that it may be unclear, the Commission proposes to “clarify that the National DNC Registry protections apply to text messages as well as voice calls and to codify this clarification in [the Commission’s] rules.”55 Previously, the Commission has stated that “text messages” are “calls” for TCPA purposes and has taken the position that the National DNC Registry protects consumers from unwanted marketing text messages.56 However, the Commission has not explicitly included text messages in the codified DNC rules.57 As the Commission recognized, the National DNC Registry has been operational for almost twenty years and currently protects over 246 million telephone numbers from telemarketing sales calls.58 As with our respective state DNC registries, the National DNC Registry is popular among consumers, as it provides a means through which consumers can exercise a modicum of control over the marketing telecommunications they choose to receive. The State AGs support the Commission’s proposal to clarify that the National DNC Registry protections will apply to marketing text messages. Such clarification is a common-sense approach to eliminate any potential confusion in the industry and has the added benefit of providing protection to consumers regardless of whether the texting party utilizes an autodialer.59 55 March 2023 FNPRM at 21, ¶ 55. 56 Id. 57 Id. 58 Id. 59 Id. at 22, ¶ 57. Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 21 of 41 IV. CONCLUSION The undersigned State AGs thank the Commission for the opportunity to present these comments in this proceeding and reaffirm our commitment to work with the Commission in combatting illegal robocalls and text messages. We respectfully urge the Commission to take this opportunity to shut down these unreliable and illegal methods of purportedly obtaining consent from consumers for marketing robocalls and texts. To that end, the State AGs recommend the Commission issue an Order that clarifies and confirms that its existing rules concerning “prior express written consent” contemplate consent between a specific consumer and one specific seller. This measure, as well as the other recommended measures set forth above, will ultimately better protect consumers from unwanted robocalls and text messages, which is a goal that the Commission and the State AGs collectively share. BY 28 STATE ATTORNEYS GENERAL: STEVE MARSHALL TREG TAYLOR Attorney General of Alabama Attorney General of Alaska KRISTIN K. MAYES ROB BONTA Attorney General of Arizona Attorney General of California Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 22 of 41 PHILIP J. WEISER WILLIAM TONG Attorney General of Colorado Attorney General of Connecticut BRIAN L. SHWALB KWAME RAOUL Attorney General of District of Columbia Attorney General of Illinois AARON M. FREY ANTHONY G. BROWN Attorney General of Maine Attorney General of Maryland ANDREA JOY CAMPBELL DANA NESSEL Attorney General of Massachusetts Attorney General of Michigan KEITH ELLISON LYNN FITCH Attorney General of Minnesota Attorney General of Mississippi Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 23 of 41 MATTHEW J. PLATKIN JOSH STEIN Attorney General of New Jersey Attorney General of North Carolina DREW H. WRIGLEY DAVE YOST Attorney General of North Dakota Attorney General of Ohio GENTNER DRUMMOND ELLEN F. ROSENBLUM Attorney General of Oklahoma Attorney General of Oregon MICHELLE A. HENRY ALAN WILSON Attorney General of Pennsylvania Attorney General of South Carolina JONATHAN SKRMETTI CHARITY R. CLARK Attorney General of Tennessee Attorney General of Vermont Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 24 of 41 JASON MIYARES BOB FERGUSON Attorney General of Virginia Attorney General of Washington Attorney General of Wyoming Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 25 of 41 State AG Reply Comment – Exhibit 1 1st Century AIB 21st Century AIG 21st Century Insurance AIG Direct 2insure4less AIO 5 Star Auto Protection AIP 7Made Media AIS AAA Auto Warranty AIU AAA Insurance Co. AIU Insurance AA Auto Protect Alfa Insurance AABCO Alfonzo Insurance Allstate Agency AA Media Inc Aliera Healthcare AARP All Access Health Insurance ABCLeads All American Health Agency A&B Insurance and Financial Allcare United Abrazo Health Allcare United LLC Absolute Health Agents AllDigitalPromotions ACA Express All Digital Promotions Acceptance Allegiant Group Acceptance Insurance Alliance Access Insurance Alliance 321 AccordantMedia Alliance and Associates Accuquote Alliance & Associates ACE Global Marketing LLC Alliance Insurance ACE Solutions Alliance National Health Acme Allianz Acordia Allied Acquisition Tech Allied Health Acquisition Technologies Allied Health Insurance Associates ACSC Allied Health Insurance Associates LLC Adexec Services Allied Insurance Admaric Insurance Agency Allied Insurance Partners AdMediary Allina Health Admiral Life All Nation AdoptAContractor All Risk Adrea Rubin Allstate Adrian Adams Agency Allstate County Mutual Adsparkx Digital Allstate Indemnity ADT Allstate Insurance ADT Solar AllWebLeads Advance Consultants LLC All Web Leads Advanced Vehicle Protection Center Alpha Benefits Center Advantra Alphatech Resource Holdings s.r.o Advocate Health Alpine Digital Group, Inc. Advocator Group America Auto Care Aegis First America Direct Aegis Security American Aegon US Holding Corp. American Adventure Insurance Aetna American Alliance A & E Vehicle Services American Automobile Insurance Affinity Health Plan American Automotive Alliance, LLC Affirmative American Banks Affordable Healthcare Partners American Benefits Affordable Health Insurance Group American Benefits Group Affordable Insurance Group Inc. American Casualty Affordable Senior Health Solutions American Commerce Insurance Company AFLAC American Continental AGA American Deposit Insurance Agency Incline American Direct Business Insurance AgentCubed Marketplace American Economy Agent Insider American Empire Insurance Agent Marketing Partners American Family Agentra Healthcare American Family Insurance AHCP American Family Mutual AHH American Fidelity Corp. AHIA American Financial AHIX American General Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 26 of 41 American Health & Life Associates Ameriquote American Health Marketplace AmeriSave American Health Plans Amerisure American Health Reform Solutions Amica American Health Solutions Amica Insurance American Health Underwriters AmOne American Home Assurance Angelic Marketing Group American Income Life Angelic Marketing Group, LLC American Income Life Insurance Company Anhelo Insurance Solutions LLC American Income Life Insurance Company Family Anhelo Insurance Solutions LLC. American Insurance ANPAC American Insurance Agencies Answer Financial American Insurance Agencies Direct Anthem American Insurance Agencies Direct Inc. Anthem BCBS American Insurance Company Anthem / BCBS American Insurance Organization AON American Insurance Organization, LLC Aon Corp. American International APEX Health Plans American International Ins API American International Pacific Apliant American International South Apollo Insurance Group American Life & Health Apollo Interactive American Manufacturers Applied General American Mayflower Insurance Aragon Advertising American Motorists Insurance Aragon Advertising LLC American National Arbella American National Insurance Ardent Health Services American National Insurance Co Arizona General American National Property and Casualty Armed Forces Insurance American Premier Arrowhead American Premier Insurance Arrowstar Insurance Center American Protection Insurance Art Institute American Reliable Assigned Risk American Republic Associated Indemnity American Republic Insurance Co. Associated Insurance Managers American Savers Plan Assurance IQ, Inc. American Security Insurance Company Assurant American Select Assured Benefits Direct American Select Health Assured Health Group LLC American Senior Med Assured Life American Service Insurance Agency Assure Media American Skyline Insurance Company Astonish American Spirit Insurance Astoria Company American Standard Atlanta Casualty American Standard Insurance - OH Atlanta Specialty American Standard Insurance - WI Atlantic Auto Protection American States Atlantic Blue Media American Workers Insurance Services Atlantic Health Americare Atlantic Health Advisors Americare/American Enterprise Atlantic Indemnity Americare Group Atlantis America's Health Advisors Atlantis Health Group Americas Health Brokers Atomic Leads America's Health Care Plan Atreus Medicare Group Americas Health Group Austin Mutual America's Insurance AutoCarenow.com America's Moneyline, Inc. Auto Club Insurance Company America's Trust Auto Insurance Guide America's Trust, Inc. Automobile Association of America AmeriChoice Automobile Club of Southern California Americo Auto Owners Amerigroup Auto Protection 1 AmeriHealth Auto Protection Club Amerilife Auto Repair Network AmeriLife Group, LLC Auto Repair Protection Services Amerilife Marketing Group, LLC Auto Service Center AmeriPlan Auto Warranty Savings Center Ameriprise Avendia Ameriprise Financial Group Avendia Management Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 27 of 41 Avenge Digital BridgeNet Aviva BridgeNet Insurance Avmed Bright Health Plan AvMed Inc. Bright Health Solutions Avomark Bright Idea Insurance Solutions, Inc. AXA Brightway AXA Advisors Bristolwest AXAD Capital Bristol West AXA Insurance Group Brokers Alliance Badger Mutual Brooke Franchise Corporation Balanced Life Agency Brooke Insurance Banker's Fidelity Brookstone Financial Bankers Hill Insurance BRXTN Digital Media Bankers Life and Casualty Budget Family Insurance Bankers & Shippers Builders Bankrate Burial Expense Bankrate, Inc. c0aster Bankrate Insurance Cal Farm Insurance Banner Life Caliber Health Solutions Bantam Connect Caliber Home Loans Bartleson Brokers Caliber Home Loans, Inc. Bayside California Casualty BBRS Group California State Automobile Association BCBS Call4SeniorSavings.com BCBS of Alabama Call Blade BCBS of Florida CallCore BCBS of Michigan CallCore Media BC Group LLC Call Lead Solutions BE Marketing Solutions Inc. Call Trader Benefit Advisors Call Trader LLC Benefit Mall Cambia Benefit United LLC Camden Benepath CAN Bennett FMO CancerInsurance.com Bennett Insurance Agency Candid Maven Best Agency USA Capital Auto Protection Best Health Options Capital Choice Best Insurance Group Capital District Physicians Health Plan Bestow Capital Health Advisors Inc. Better Health Alternatives Capital Health Insurance of America Better Living Health Services Carchex Better Mortgage Corporation Cardinal Financial Company, Limited Partnership Beyond Finance, DBA Accredited Debt Relief Care Entrée BH Insurance Solutions, LLC CareMore Bianco Caresource Black Optek CareZone Blueberry Carezone Inc. Blue Choice CareZone Insurance Services Blue Cross CarGuard Administration Blue Cross - Anthem Carle Clinic Association Blue Cross Blue Shield Carriers and partner companies include Blue Cross/Blue Shield Association Companies CarShield Blue Cross of South Carolina Cascade National Ins Blue Ink Digital Casualty Assurance Bluensure Insurance Catholic Financial Life Blue Nsure Insurance CDPHP Blue Shield of California CDX Consultants Blue Summit CEGE Blue Summit Insurance Solutions Cege Media Blue Wing Ads Cekirk Insurance BMP Insurance Celtic Insurance Bold Media Group Centene Bolt Centene Corp. Bonneville Centennial Boost Central Bank Boost Health Century Benefits Boost Health Insurance Century Insurance Boston Old Colony Certainty Auto Protection Bravo Health Channel Blend Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 28 of 41 Charter Oak Connect Medicare Supplement Chase Insurance Group Connect Medicare Supplementli> Cherry Blitz Connect One Health Chesapeake Connect Plus Chicago Insurance Conseco Life Choice Direct Consumer Advocacy LLC Choice Health Consumer United Choice Insurance Contactability Choice One Health Continental Casualty Choice One Health & Life Agency Continental Divide Insurance Choice Right LLC Continental Insurance Christian Fidelity Continental Life Chubb Conventry Church Mutual Core Healthcare Solutions Cigna Core Health Solutions CIQ Corner Shop Media Citation Insurance Company Corner Stone Media Citigroup COTO INDUSTRIES LLC Citizens Cotton States Insurance Citizens Disability Cottonwood Clarendon American Insurance Countershot Media Clarendon National Insurance Country Companies Clean Energy Concepts Country Financial Clear Choice Health Country Insurance and Financial Services Clearcover Countrywide Insurance ClearLink Couvillier Advisors Clear One Coventry Click 2 Call Network Coventry Health Care Clicks and Clients Coverage Choice LLC Client Consent Medicare Coverage One Cloverleaf Coverage One Insurance CMG Solutions Coverage One Insurance Group LLC CNA Insurance Coverage One Insurance Group, LLC Coastline Insurance Advisors LLC Coverance Insurance Solutions CO Farm Bureau Coverdell Colby Direct CoverHound Colonial Covida Colonial Insurance CPA Data Solutions LLC Colonial Penn Creative Emarketing Combined Creative Intellects Comfortcare Insurance Group Credible Operations, Inc Comfort Care Insurance Group Credit Union ComfortCare Insurance Group Crisp-Results Commerce West Insurance Company Criterion Commercial Insurance Center Crosspointe CommercialInsurance.net Crosspointe Insurance and Financial Services LLC Commercial Marketing Group Crosspointe Insurance & Financial Services, LLC Commercial Union CSE Commonwealth CSE Insurance Group Communicating for America CS Marketing CommunityCare Cultur, LLC Community Care CUNA Mutual Group Compare.com Dairyland CompareInsuranceQuotes Dairyland County Mutual Co of TX Compare Insurance Quotes Dairyland Insurance Comparenow Dakota Fire Comparequotes Dashers Comparison Market Datalot Complete Car DataMax Complete Healthcare Direct, LLC Dean Health Confie Debt.com Connect Health Insurance Deerbrook Connect Health Insuranceli> Delphi Financial ConnectiCare Delta Auto Assurance Connect Insurance Brands Delta Auto Protect Connect Life Plans Dempsey Advisor Connect Life Plansli> DentalInsurance.com Connect Medicare Advantage Depositors Emcasc Connect Medicare Advantageli> Design Benefit Plans Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 29 of 41 Diablo Media Endurance Warranty Servcies Differential Consulting LLC Enhance Insurance LLC Digiline Media EnQue Solutions LLC Digital BGA Enrollment Services Inc. Digital DBA Ensure Digital Marketing Connection Ensurem Digital Market Media EPath Digital Market Media, Inc. EPIQ Digital Media Solutions Epiq Insurance Digital Thrive Equis Financial DIQ Partners Equitable Life Direct Auto Equita Group Direct Choice Equita Group Final Expense Services Direct General Erie DirectMail.com Erie Insurance Company Direct Property & Casualty Erie Insurance Exchange Direct Ring Media Erie Insurance Group Direct Web Advertising Erie Insurance Property and Casualty Disability Advisor ESG Insurance LLC Discount Insurance Quotes Essential Group LLC Dixie Essential Group, LLC Dobak Holdings LLC Esurance Doc Auto e-Telequote Doc Auto Insurance ETHOS Doc Insurance ETN America Health Docktors Even Financial DoublePositive Everest Financial & Insurance Services Dozer Health Everquote Draper Agency EverQuote, Inc Drips EverQuote, Inc. Drivers Protection, LLC EverQuote ODA Drobu Every Choice Insurance DTRIC Exact Match Media Eagle Health Excel Impact eAmerifamily Excel Impact, LLC East Coast Health Insurance Excelium Group EasyHealth Insurance Services Excella Benefits, Inc. easyMedicare.com, an affiliate of e-TeleQuote Excelling, Inc. Insurance, Inc. Excellus EasyMedicare.com, an affiliate of e-TeleQuote Exclusive Digital Media Insurance, Inc Explorer Ebco General Ezhealthapplcom, Inc. EC Insurance Fabric Economy Fire & Casualty Facility Economy Preferred Fallon Community Health Plan EDeals Inc Family First Efinancial Family First Insurance Advisors Egis Auto Family First Insurance Advisors LLC eHealth Family First Life eHealth Insurance Family Health First eHealth Insurance Services Family Health First LLC eHealthInsurance Services Family Heritage Life Insurance Company of eHealthInsurance Services, Inc. America Elderplan Family Life Electric Family/Rural Electric Insurance Farber Health Advisors Elephant Farm and Ranch Elite Health Agency Farm Bureau Elite Health Plus Farm Bureau/Farm eMarketing Media Group Farm Bureau Financial Services EmblemHealth Farmers EMC Farmers Bank of Kansas City Empire Farmers Insurance Empire Consumer Services Farmers Insurance Exchange Empire Health Consultants Farmers TX County Mutual Empire Health Solutions Farmers Union Employers Fire Farmland Empower Brokerage Federal Encompass Federated Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 30 of 41 Federated American Geico Casualty Federated Group Geico General Insurance Ference Insurance Agency Geico Indemnity Festive Health Geisinger FFL Geisinger Insurance Fidelis Generation Life Fidelity and Guaranty Life Generation Life Insurance Fidelity Insurance Company Genworth Fidelity Investments Life Genworth Financial Fidelity Life Gerber Fidelity National Gerber Life Fidelity Security Life GetAuto Figure Lending LLC GetInsured Finalexpenseassistant.com Getmehealthcare Final Expense Connect GetMe Healthcare FinanceBox.com GetMeHealthCare.com Financial Indemnity GetMeHealthInsurance.com Find Me Health Insurance Get My Life Insured Fiorella Get Seen Media Fiorella Insurance Agency Get Seen Media Group Fire and Casualty Insurance Co of CT GHI Fireman's Fund Global Equity Finance Firemans Fund Globe Life First Acceptance Insurance Globe Life Insurance Company First American Globe Life Insurance Company of New York First American Financial GMAC Insurance First Choice Group GMAC/NGIC First Choice Health Go Direct Lead Gen First Family Insurance Go Direct Lead Generation, LLC First Family Insurance Advisors GoDirect Leads Generation First Family Life GoHealth First Financial GoHealth.com First General GoHealthInsurance First Mutual Insurance Group (FMIG) GoHealthInsurance.com First National GoHealth/Norvax First Option Health Group Goji First Preferred Insurance Golden Care FirstQuoteHealth.com Golden Rule Flexquote Golden Rule Insurance Florida Blue Golden Rule Insurance Co. 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Forefront Insurance GotQuotes Foremost Government Employees Foremost Insurance Government Employees Insurance Foresters Government Personnel Mutual Life Forethought Grange Formula Marketing & Analytics Gr Consulting Services Formza GreatAmerican Formza, LLC Great American Fortegra Great Way Fortegra Insurance Great West Fortegra Personal Insurance Agency Greene Fortis GRE Harleysville H Franklin GreyPeaks Freedom Debt Relief Grey Peaks Freedom health Grinnell Mutual Freedom National Group Health Incorporated Freeway Groves Capital, Inc Freeway Insurance Guaranteed Benefits Freeway Insurance Services Guaranteed Health Fresh Leads Guaranteed Health Options Fuego Leads Guarantee Trust Life Gainsco Guaranty National Garland Financial Group Guaranty National Insurance Gaurantee Trust Life Guardian Geber Life Guardian Healthcare GEICO Guardian Life Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 31 of 41 Guide One Health Insurance Innovations Guide One Insurance Health Insurance Innovations (HII) GuidePointe Solutions HealthInsurance.net Guide to Insure Health Insurance of America Gupta Insurance & Financial Service Health Insurance Services Halcyon Health Insurance Specialists Hannigan Insurance HealthIQ Hanover Health IQ Hanover Lloyd's Insurance Company Health I.Q. HAP Health Alliance Health & Life Advantage Happy Days Healthline Care Harbor Health Advisors HealthMarkets Hartford Health Markets Hartford AARP HealthMarkets Insphere Hartford Accident and Indemnity HealthMarkets / Insphere Hartford Casualty Insurance HealthMarkets Insurance Agency Hartford Fire & Casualty HealthMatchup Hartford Fire Insurance HealthNet Hartford Insurance Co of Illinois Health Net Hartford Insurance Co of the Southeast Health Network Hartford Life Health Now New York Inc. Hartford Omni Health Option One Hartford Underwriters Insurance Health Options Team Harvard Commonwealth Health Plan HealthPartners Harvard Pilgrim Health Partners of Philadelphia Inc. 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Health Insurance Alliance, LLC Highmark Health Insurance for Everyone Highmark BCBS Health Insurance Guide HighPoint Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 32 of 41 High Quality Vehicle Protection Independent Health Solutions HII Independent Insurance Consultants HIIQ Individual Insurance Agencies HIP Health Plan Infinity HIP Insurance Infinity Insurance Hippo Infinity National Insurance Hippo Insurance Infinity Select Insurance Hiscox Infinix H&M Advisors Infinix Media HolaDoctor ING Hola Doctor ING US Life Homeinsurance.com Innovate Financial Group Home Insurance King Innovation Direct Group Homeland Health Innovation Group of South Florida Homeland HealthCare Innovative Financial Group Home Savings Innovative Health Group Home Service Companies Innovative Insurance Brokers Hometown Inquire Media Hometown Quotes Inside Response Home Town Quotes Insphere Horace Mann Insphere Insurance Solutions Horace Mann Agency InsuraMatch Horizon Insurance311 Horizon Health Advisors Insurance Benefits Hospital Services Association of NEPA Insurance Care Direct Houstons Health Solutions Insurance Central How to Enroll Insurance.com HPO Insurance Insight HSO Insurance Lead Broker, ILB HST Insurance Leads HST Enrollment Center InsuranceLeads.com Humana Insurance Line One HyperTarget Insurance Made Easy Hypertarget Marketing Insurance Management Associates IAB Insurance Medics iCan Benefit Insurance Office of America iCan Benefit Group InsuranceOnly Iconic Consultants InsuranceProz ICW Insurancequotes Ideal Concepts insuranceQuotes.com Ideal Concepts, Inc InsuranceQuotes, Inc. 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Corp. and its affiliates Lead Gate Media GmbH Marathon Lead Genesis Marchex Lead Giant Markel American Leading Healthcare Martin Financial Leadnomics Martin's Point Lead Origins Maryland Casualty Leads Interactive Massachusetts Mutual Lead Trust Media Group Massive&Co League General MassMutual Reply Comments of 28 State AGs, CG Docket Nos. 21-402 & 02-278 Page 34 of 41 Mass Mutual Miro Health Agency MassNexus Mission Loans Mass Nexus Mississippi Insurance MatchMedia Missouri General Match Media Group MJ Direct Matrix Direct MMI Group Matt Rudolph Insurance MMM Healthcare Inc. Maxim Strategies Mobile Help Maxxlocal Modern Health, LLC Mayberry Advisors Insurance Services Modern Woodmen of America Mayo Lab Molina MCGP International Molina Healthcare Inc. 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