November 22, 2023 FCC FACT SHEET* Combatting Illegal Text

November 22, 2023

FCC FACT SHEET

Combatting Illegal Text Messages

Second Report and Order and Second Further Notice of Proposed Rulemaking in CG Docket Nos. 02-278

and 21-402, and Waiver Order in CG Docket No. 17-59

Background: This Report and Order, Further Notice of Proposed Rulemaking, and Waiver Order takes

the next step in combatting the growing problem of illegal robotexting. This item, if adopted, would

enlist service providers in the fight against illegal text messaging and would close the lead generator

loophole that has resulted in unscrupulous robocallers and robotexters inundating consumers with

unwanted and illegal robocalls and robotexts.

What the Order Would Do:

• Require terminating mobile wireless providers to block all texts from a particular number when

notified by the Commission of illegal texts from that number.

• Codify that the National Do-Not-Call (DNC) Registry’s protections extend to text messages.

• Encourage providers to make email-to-text, a major source of illegal texts, a service that

consumers proactively opt into.

• Close the lead generator loophole by making unequivocally clear that comparison shopping

websites must get consumer consent one seller at a time, and thus prohibit abuse of consumer

consent by such websites.

What the Further Notice Would Do:

• Propose and seek comment on additional text blocking options, including requiring originating

mobile wireless providers to block texts from a particular number when notified by the

Commission of illegal texts from that number or risk all of their texts being blocked.

• Seek comment on the current state of text authentication.

• Seek comment on the traceback process for texting and whether to adopt a requirement for mobile

wireless providers to respond to traceback requests from the Commission and law enforcement.

• Propose and seek comment on requiring mobile wireless providers to make email-to-text an opt-

in service.

What the Waiver Order Would Do:

• Allow mobile wireless providers to use the Reassigned Numbers Database to determine whether a

number has been disconnected after the date of illegal texts in the Commission’s notification to

avoid blocking of texts from reassigned numbers.

This document is being released as part of a “permit-but-disclose” proceeding. Any presentations or views on the

subject expressed to the Commission or its staff, including by email, must be filed in CG Docket No. 02-278, CG

Docket No. 21-402, and CG Docket No. 17-59 which may be accessed via the Electronic Comment Filing System

(http://www.fcc.gov/ecfs). Before filing, participants should familiarize themselves with the Commission’s ex parte

rules, including the general prohibition on presentations (written and oral) on matters listed on the Sunshine Agenda,

which is typically released a week prior to the Commission’s Meeting. See 47 CFR § 1.1200 et seq.

Federal Communications Commission FCC-CIRC2312-02

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

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

)

CG Docket No. 21-402

CG Docket No. 02-278

CG Docket No. 17-59

SECOND REPORT AND ORDER,

SECOND FURTHER NOTICE OF PROPOSED RULEMAKING IN CG DOCKET NOS. 02-278

AND 21-402, AND WAIVER ORDER IN CG DOCKET NO. 17-59

Adopted: [[ ]] Released: [[ ]]

Comment Date: [30 days after Federal Register publication]

Reply Date: [45 days after Federal Register publication]

By the Commission:

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................................. 1

II. BACKGROUND .................................................................................................................................... 5

A. The Commission’s Multi-Pronged Approach to Unwanted and Illegal Calls ................................. 7

B. Combating Unwanted and Illegal Texts ......................................................................................... 12

III. SECOND REPORT AND ORDER ...................................................................................................... 14

A. Mandatory Blocking Following Commission Notification............................................................ 16

B. National Do-Not-Call Registry ...................................................................................................... 25

This document has been circulated for tentative consideration by the Commission at its December open meeting.

The issues referenced in this document and the Commission’s ultimate resolution of those issues remain under

consideration and subject to change. This document does not constitute any official action by the Commission.

However, the Chairwoman has determined that, in the interest of promoting the public’s ability to understand the

nature and scope of issues under consideration, the public interest would be served by making this document

publicly available. The FCC’s ex parte rules apply and presentations are subject to “permit-but-disclose” ex parte

rules. See, e.g., 47 C.F.R. §§ 1.1206, 1.1200(a). Participants in this proceeding should familiarize themselves with

the Commission’s ex parte rules, including the general prohibition on presentations (written and oral) on matters

listed on the Sunshine Agenda, which is typically released a week prior to the Commission’s meeting. See 47 CFR

§§ 1.1200(a), 1.1203.

Federal Communications Commission FCC-CIRC2312-02

C. Email-to-Text messages ................................................................................................................. 28

D. Closing the Lead Generator Loophole ........................................................................................... 29

E. Text Message Authentication and Spoofing .................................................................................. 45

F. Summary of Benefits and Costs ..................................................................................................... 47

G. Legal Authority .............................................................................................................................. 51

IV. SECOND FURTHER NOTICE OF PROPOSED RULEMAKING .................................................... 56

A. Text Blocking ................................................................................................................................ 57

1. Expanding the Mandatory Text Blocking Requirement to Originating Providers and

Adding a Downstream Provider Blocking Requirement ......................................................... 58

2. Requiring Blocking of Texts Based on Reasonable Analytics ................................................ 64

3. Alternative Approaches ........................................................................................................... 68

4. Protections Against Erroneous Blocking ................................................................................. 69

B. Text Message Authentication ........................................................................................................ 70

C. Traceback ....................................................................................................................................... 73

D. E-Mail-To-Text .............................................................................................................................. 75

E. Benefits and Costs ......................................................................................................................... 76

F. Digital Equity and Inclusion .......................................................................................................... 77

G. Legal Authority .............................................................................................................................. 78

V. WAIVER ORDER ............................................................................................................................... 81

VI. PROCEDURAL MATTERS ................................................................................................................ 85

VII.ORDERING CLAUSES ....................................................................................................................... 96

Appendix A List of Commenters

Appendix B Final Rules

Appendix C Proposed Rules

Appendix D Final Regulatory Flexibility Analysis

Appendix E Initial Regulatory Flexibility Analysis

I. INTRODUCTION

1. Consumers increasingly rely on text messaging to stay in touch with friends and family,

to do business, communicate with their child’s school, and get information from their government. On

many devices, people immediately see some or all of the messages once received on the device, whereas

they have the option to ignore unwanted calls. This causes consumers to open their texts quickly because

texts are an expected trusted source of communications, not annoyance and scams.

The rise of junk texts

jeopardizes consumer trust in text messaging. The increase of unwanted and illegal texts also frustrate

consumers, and scam texts can cause serious harm. Scam texts can contain links to phishing campaigns

and load malware onto unsuspecting consumers’ phones, leading to fraud and other harms.

The Federal

Trade Commission (FTC) reports that text messaging scams cost consumers $86 million in 2020 and

$326 million in 2022.

Other estimates show higher losses, e.g., over $20 billion in 2022.

See CTIA, Messaging, https://www.ctia.org/homepage/messaging-channel (“The text messaging platform is one of

the most trusted forms of communication because consumers have choice and control over their text message

experience.”) (last visited Oct. 26, 2023); CTIA, Protecting Yourself from Spam Messages,

https://www.ctia.org/consumer-resources/protecting-yourself-from-spam-text-messages (“Overall, text messaging is

one of the most trusted and widely used forms of communication by consumers. In fact, Americans send over

63,600 text messages per second.”) (last visited Oct. 26, 2023).

SMS phishing, or smishing, is the practice of sending text messages to someone in order to trick the person into

revealing personal or confidential information which can then be used for criminal purposes. Merriam Webster

Dictionary, https://www.merriam-webster.com/dictionary/smishing (last visited Nov. 3, 2023).

FTC, Consumer Sentinel Network Data Book 2020 at 12 (2021),

https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-

(continued….)

Federal Communications Commission FCC-CIRC2312-02

2. We take action today to stop this trend and ensure consumers can continue to trust text

messaging. We do so by building on our recent text blocking requirements. First, we require terminating

mobile wireless providers

to block text messages

from a particular number following notification from

the Commission unless their investigation determines that the identified text messages are not illegal.

Next, we codify that the National Do-Not-Call (DNC) Registry’s protections apply to text messages.

Third, we encourage providers to make email-to-text, a major source of illegal texts, a service that

consumers proactively opt into. Next, we close the lead generator loophole by prohibiting lead

generators, texters, and callers from using a single consumer consent to inundate consumers with

unwanted texts and calls when consumers visit comparison shopping websites.

3. And we propose further steps to stop unwanted texts. First, we propose a stronger

blocking requirement following Commission notification and seek comment on other options for

requiring providers to block unwanted or illegal texts. Second, we seek further comment on text message

authentication, including the status of any industry standards in development. Finally, we propose to

require, rather than simply encourage, providers to make email-to-text services opt in.

4. We also adopt a limited waiver to allow providers to use the Reassigned Numbers Database

(RND) to determine whether a number that the Commission has ordered to be blocked has been

permanently disconnected. This waiver will help prevent blocking of lawful texts from a new subscriber

to the number.

II. BACKGROUND

5. While combatting unwanted and illegal calls has long been one of the Commission’s top

consumer protection priorities, combatting unwanted and illegal text messages is a comparatively new

focus.

Just like unwanted and illegal calls, unwanted and illegal texts defraud and harass consumers.

(Continued from previous page)

2020/csn_annual_data_book_2020.pdf (2020 Consumer Sentinel Data Book); FTC, Consumer Sentinel Network

Data Book 2022 at 12 (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/CSN-Data-Book-2022.pdf (2022

Consumer Sentinel Data Book). See also FTC, Consumer Sentinel Network Data Book 2021 at 12,

https://www.ftc.gov/reports/consumer-sentinel-network-data-book-2021 (2022) (2021 Consumer Sentinel Data

Book). As the Joint Consumer Commenters observe, the FTC data are based solely on reports made by consumers

and represent only a fraction of the universe of losses from text scams; the actual losses to consumers from text-

initiated frauds are, undoubtedly, exponentially greater. Joint Consumer Commenters at 3.

Robokiller, The Robokiller Phone Scam Report: 2022 Insights & Analysis, at 4 (2023), https://assets.website-

files.com/61f9a8793a878d7f71c5505d/6400e06e514500224ad26830_The%20Robokiller%20phone%20scam%20re

port%20-%202022%20insights%20%26%20analysis.pdf (Robokiller 2022 Report). Robokiller observes that, in

2022, 225.7 billion spam texts were sent, a 157% increase from 2021’s then-record 87.8 billion. Id. at 5. Robokiller

estimates the loss to robotext scams at $13 billion, for the first half of 2023, a $4 billion increase from the first half

of 2022. Robokiller, The Robokiller Phone Scam Report: 2023 Midyear Insights & Analysis, at 4 (2023),

https://assets.website-files.com/61f9a8793a878d7f71c5505d/64ca6ccf1f5e962fae3e55e3_Robokiller%20Mid-

Year%20Report%202023.pdf (Robokiller 2023 Report).

In this order, we use “provider” to mean a mobile wireless provider that provides text messaging services. Where

we refer to providers of voice calls, we use the term “voice service provider,” which may include originating,

intermediate, or terminating voice service providers.

We use the definition of text message in section 64.1600(o) of our rules in this proceeding. The scope of our

decision regarding text messages is limited to those originating from North American Numbering Plan (NANP)

numbers that use the wireless networks, e.g., SMS and MMS, not over-the-top (OTT) messaging, such as iMessage

and WhatsApp, or Rich Communications Services (RCS); 47 CFR § 64.1600(o) et seq.

Since 2003, the Commission has interpreted “call” in section 227(b)(1)(A) of the Communications Act of 1934, as

amended (Act or Communications Act) to include both voice calls and text messages. This order distinguishes

“calls” (voice) from “texts” for purposes of our blocking and other actions today even though they are both “calls”

under the statute.

Federal Communications Commission FCC-CIRC2312-02

Robokiller estimates that these texts increased by over 300% between 2020 and 2022.

These texts can

result in real financial loss to consumers.

6. Robocalls and robotexts can both annoy and defraud consumers, but robotexts can be

particularly pernicious. Robotexts are delivered directly to consumers phones and can include links to

phishing websites that look identical to legitimate websites, easily tricking potential victims into

providing personal or financial information.

Or, the link itself may be the threat.

Simply clicking on a

scam link could load malware onto phones that provides opportunities for theft of passwords, personally

identifiable information, and other credentials, without consumer consent or knowledge.

A. The Commission’s Multi-Pronged Approach to Unwanted and Illegal Calls

7. Unwanted and illegal texts reach the same consumers and may even come from the same

sources as unwanted and illegal calls. Our long-standing work on robocalls thus informs our new work

on robotexts.

8. Telephone Consumer Protection Act and National Do-Not-Call Registry. The TCPA and

the Commission’s implementing rules require callers to obtain consumer consent for certain calls and

texts sent using an automatic telephone dialing system (autodialer) or made using a prerecorded or

artificial voice.

If a robocall or robotext includes or introduces an advertisement or constitutes

telemarketing, the prior express consent must be in writing.

The Commission has clarified that Internet-

to-phone text messages, which are sent via the Internet to a provider and then routed to a consumer’s

phone over the provider’s wireless network, are also covered by the TCPA.

The Commission’s DNC

Robokiller 2022 Report at 4. Robokiller observes that, in 2022, fraudsters sent 225.7 billion spam texts, a 157%

increase from 2021’s then-record 87.8 billion. Id. at 5. According to Robokiller, Americans received 78 billion

robotexts in the first half of 2023, an increase of 18% from the first half of 2022. Robokiller 2023 Report at 4.

See, e.g., 2020 Consumer Sentinel Data Book at 12; 2021 Consumer Sentinel Data Book at 12; 2022 Consumer

Sentinel Data Book at 12; Robokiller 2022 Report at 4; Robokiller 2023 Report at 4.

See, e.g., FTC, Consumer Advice, How to Recognize and Avoid Phishing Scams,

https://consumer.ftc.gov/articles/how-recognize-and-avoid-phishing-scams (last visited Nov. 3, 2023); AT&T,

Cyber Aware, Text Message Scams, https://about.att.com/pages/cyberaware/ni/blog/text_scams (last visited Nov. 3,

2023); Verizon, Account Security, Smishing and Spam Text Messages, https://www.verizon.com/about/account-

security/smishing-and-spam-text-messages (last visited Nov. 3, 2023).

FTC, Consumer Advice, How to Recognize and Avoid Phishing Scams, https://consumer.ftc.gov/articles/how-

recognize-and-avoid-phishing-scams (last visited Nov. 3, 2023).

FTC, Consumer Advice, How to Recognize, Remove, and Avoid Malware, https://consumer.ftc.gov/articles/how-

recognize-remove-avoid-malware (last visited Nov. 6, 2023).

47 U.S.C § 227(b)(1)(A); 47 CFR § 64.1200(a)(1); see also 47 CFR § 64.1200(a)(9) (providing exemptions to

(a)(1)(iii) and noting that “the term ‘call’ includes a text message, including a short message service (SMS) call”).

This restriction applies to calls directed to wireless numbers, as well as to emergency numbers and other specified

locations. For autodialed or prerecorded-voice telemarketing calls to wireless numbers, prior express consent must

be written. See 47 CFR § 64.1200(a)(2); Rules and Regulations Implementing the Telephone Consumer Protection

Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1838, para. 20 (2012) (2012 TCPA

Order). The seller bears the “burden of demonstrating that a clear and conspicuous disclosure was provided and that

unambiguous consent was obtained.” 2012 TCPA Order, 27 FCC Rcd at 1844, para. 33. 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, 1173 (2021) (Facebook).

See 47 CFR § 64.1200(a)(2).

Federal Communications Commission FCC-CIRC2312-02

rules protect consumers from unwanted telephone solicitations or telemarketing calls to wireless

and

wireline phones when the consumer has added the number to the National DNC Registry.

9. Call Blocking, Robocall Mitigation, and Caller ID Authentication. To better protect

consumers from bad actors that do not comply with the restrictions under the TCPA and National DNC

Registry or otherwise place illegal calls or texts, the Commission has taken further steps to combat illegal

calls. This includes ensuring consumers have a say in which calls ring their phones, restoring faith in

caller ID and making callers easier to identify, and holding voice service providers responsible for the

calls they originate or transmit.

10. Of particular interest here, the Commission has authorized providers to block calls in

certain instances,

adopted safe harbors to ensure that providers are not subject to liability for blocking

within certain constraints,

and in some cases mandated blocking of certain categories of calls that are

highly likely to be illegal.

These rules require certain voice service providers to block calls following

notification of illegal traffic by the Commission and that providers immediately downstream block their

traffic if they fail to do so.

And the Commission has adopted rules mandating that voice service

providers respond to traceback requests

and requiring originating, terminating, and intermediate voice

service providers to implement the STIR/SHAKEN caller ID authentication framework in the IP portions

(Continued from previous page)

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 30

FCC Rcd 7961, 8019-20, paras. 113-15 (2015) (2015 TCPA Declaratory Ruling and Order) (describing services that

allow senders to initiate texts via the Internet rather than via an individual phone where those texts look functionally

equivalent to the recipient).

In the 2003 TCPA Order, the Commission concluded that the National DNC Registry should allow for the

registration of wireless telephone numbers, and that such action will better further the objectives of the TCPA and

the Do-Not-Call Act

. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG

Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14037-38, para. 33 (2003) (2003 TCPA Order).

2003 TCPA Order, 18 FCC Rcd at 14033-39, 14116, paras. 25-36, 166; 47 CFR § 64.1200(c)(2), (e). The

National DNC Registry currently protects over 246 million telephone numbers from telemarketing sales calls, or

“telephone solicitations.” See FTC National Do-Not-Call Registry Data Book for Fiscal Year 2022, (Nov. 2022)

https://www.ftc.gov/reports/national-do-not-call-registry-data-book-fiscal-year-2022. 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 an

established business relationship, or by a tax exempt nonprofit organization. 47 U.S.C. § 227(a)(4).

See 47 CFR § 64.1200(k)(1), (2).

See 47 CFR § 64.1200(k)(3), (4), (11).

See 47 CFR § 64.1200(o).

47 CFR § 64.1200(n)(5), (n)(6).

47 CFR § 64.1200(n)(1). Traceback is the process of following the call path back to the point of origin. In the

Gateway Provider Order and Further Notice, the Commission enhanced the existing traceback requirement to

require gateway providers to respond to traceback requests within 24 hours. Advanced Methods to Target and

Eliminate Unlawful Robocalls, Call Authentication Trust Anchor, 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, 37 FCC Rcd 6865, 6894-97, paras. 65-71 (2022) (Gateway Provider Order and Further

Notice). In the May 2023 Call Blocking Order, we expanded that enhanced requirement to cover all domestic voice

service providers. Advanced Methods to Target and Eliminate Unlawful Robocalls, Call Authentication Trust

Anchor, CG Docket No. 17-59, WC Docket No . 17-97, paras. 21-28 (May 2023 Call Blocking Order).

Federal Communications Commission FCC-CIRC2312-02

of their networks.

Taken together, these requirements help identify bad actors—both callers and voice

service providers—and stop these calls at their source.

11. Enforcement. The Commission has also taken enforcement action to protect consumers

against illegal calls. For example, the Sumco Forfeiture Order found that certain robocall campaigns

violated the TCPA for reasons including the telemarketers’ failure to obtain prior express written consent

before initiating telemarketing calls to wireless phones and residential lines.

And the Commission

recently required all voice service providers immediately downstream from a specific gateway provider to

block and cease accepting all traffic from that gateway provider after it repeatedly allowed transmission

of illegal robocalls into the United States.

B. Combating Unwanted and Illegal Texts

12. The Commission for the first time required providers to block certain texts that are highly

likely to be illegal in March of 2023.

The Commission required providers to block—at the network

level—texts purporting to be from North American Numbering Plan (NANP)

numbers on a reasonable

See 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 and 20-67, Report and Order and Further Notice

of Proposed Rulemaking, 35 FCC Rcd 3241, 3252, para. 24 (2020) (requiring originating and terminating providers to

implement STIR/SHAKEN) (First Caller ID Authentication Order); Call Authentication Trust Anchor, WC Docket

No. 17-97, Second Report and Order, 36 FCC Rcd 1859, 1876-97, paras. 36-73, (providing implementation

extensions to certain providers) (Second Caller ID Authentication Order); Gateway Provider Order and Further

Notice, 37 FCC Rcd at 6886-894, paras. 51-63 (requiring gateway providers, a subset of intermediate providers, to

implement STIR/SHAKEN); Call Authentication Trust Anchor, WC Docket No. 17-97, Sixth Report and Order and

Further Notice of Proposed Rulemaking, FCC 23-18 (Mar. 17, 2023) at paras. 15-27 (2023 Caller ID Authentication

Order) (requiring non-gateway intermediate providers that receive unauthenticated calls directly from originating

providers to authenticate calls with STIR/SHAKEN by December 31, 2023); 47 CFR §§ 64.6301, 64.6302, 64.6304.

STIR/SHAKEN caller ID authentication helps confirm that the caller ID is not spoofed, or otherwise provides

information regarding what the signing voice service provider knows to be true about the caller and its right to use

the number. Protocols developed by the Secure Telephony Identity Revisited (STIR) working group of the Internet

Engineering Task Force (IETF) work with the Signature-based Handling of Asserted information using toKENs

(SHAKEN) implementation standards created by the Alliance for Telecommunications Industry Solutions (ATIS)

and the SIP Forum. See First Caller ID Authentication Order, 35 FCC Rcd 3241, 3244-46, paras. 5-10.

Sumco Panama SA, et al , EB File No. EB-TCD-21-00031913, Forfeiture Order, FCC 23-64, at 12-13, paras. 25-

26 (Aug. 3, 2023) (Sumco Forfeiture Order).

One Eye LLC, EB Docket No. 22-174, Final Determination Order, DA 23-389, at 1, 2-3, paras. 1, 5 (May 2023)

(One Eye). More recently, issued an Initial Determination Order against One Owl Telecom for the apparent

transmission of illegal traffic. One Owl Telecom Inc., EB Docket No. 22-174, Initial Determination Order, DA 22-

174 (Sept. 2023).

See generally Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the

Telephone Consumer Protection Act of 1991, CG Docket Nos. 02-278, 21-402, Report and Order and Further Notice

of Proposed Rulemaking, FCC 23-21 (Mar. 17, 2023) (Text Blocking Order and Further Notice). Previously, the

Commission’s Enforcement Bureau had investigated instances of robotexting. See, e.g., Emanuel (Manny)

Hernandez, Click Cash Marketing, LLC, and Rock Solid Traffic, Citation and Order, Unauthorized Text Message

Violations, 33 FCC Rcd 12382 (EB 2018) (Hernandez); Public Notice, FCC Enforcement Advisory, Robotext

Consumer Protection, Text Message Senders Must Comply With The Telephone Consumer Protection Act, 31 FCC

Rcd 12615 (EB 2016).

The NANP 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,

and the Commonwealth of the Northern Mariana Islands). 47 CFR § 52.5(d).

Federal Communications Commission FCC-CIRC2312-02

who argue that consumers deserve protection against calls that go beyond the scope of consent, a scope

that can be reasonably inferred from the purpose of the website at which they gave that consent.

believe that texters and callers are capable of implementing this standard and, when in doubt, will err on

the side of limiting that content to what consumers would clearly expect. As a result, we decline to adopt

a definition of “logically and topically” at this time as some commenters suggest.

36. Preserving Comparison Shopping Websites and Ease of Compliance. Our new rule

protects consumers while preserving the ability of comparison shopping websites to provide consumers

with comparison shopping opportunities.Such websites are useful both to consumers, who are seeking

specific goods and services, and businesses, including small businesses seeking new customers.

37. Websites, including comparison shopping websites, can use a variety of means for

collecting one-to-one consent for multiple sellers to comply with our rule. For instance, the website may

offer a consumer a check box list that allows the consumer to specifically choose each individual seller

that they wish to hear from.

Alternatively, the comparison shopping website may offer the consumer a

clickthrough link to a specific business so that the business itself may gather express written consent from

the consumer directly. Our rule does not prohibit comparison shopping websites from obtaining leads

through valid consent and provides multiple opportunities for responsible comparison shopping websites

to obtain leads for potential callers.

38. The rule we adopt today best balances the needs of businesses to utilize lead generation

services to make calls to potential buyers with protecting consumers from a deluge of unwanted robocalls

and robotexts. We thus disagree with those commenters who argue that this rule unduly harms business,

including small businesses.

First, our rules already require that callers and texters obtain valid consent.

The rule we adopt today helps callers and texters, including small businesses, by providing legal certainty

as to how to meet their burden of proof when they have obtained consent via a third party. Our rule does

not prevent small business from obtaining leads from third party comparison shopping websites or from

making calls pursuant to those leads. They may continue to do so as long as they can clearly demonstrate

that they have obtained consent consistent with the rules we adopt today.

39. Further, callers and texters may avail themselves of other options for providing

comparison shopping information to consumers, e.g., manually dialed or non-prerecorded or artificial

voice calls or texts, email, or information displayed directly on the third party website. We find that the

rule we adopt today provides the best balance between protecting consumers from unwanted and illegal

calls and the need for small businesses to use leads generated by third parties to sell their goods and

services. Indeed, small businesses themselves may utilize comparison shopping services when

comparison shopping for business services and our rule protects these businesses from having their own

See, e.g., USTelecom Comments at 5; VON Comments at 7-8; Chandler Comments at 1; QuinStreet Comments at

7; Letter from Lucas Bell, Director, Government Relations, Zillow Group, to Marlene H. Dortch, Secretary, Federal

Communications Commission (Oct. 27, 2023) at 3 (Zillow ex parte).

See, e.g., UHC Comments at 4; PACE Comments at 5; Bankers Joint Commenters Reply at 13-16.

See, e.g., OLA Comments at 3 (observing that small-dollar lead generators often connect underserved consumers

with credit providers willing to quickly help solve the needs of the credit challenged); REACH Comments at 4 (lead

generators can be “an engine that drives a huge number of small and independent companies that do not have their

own robust marketing team”).

Joint Consumer Commenters Reply at 13; State Attorneys General Reply at 17.

See, e.g., OLA Comments at 3-4; REACH Comments at 4-5; SolarReviews Comments at 4; Letter from Eric J.

Troutman, counsel for EXP Realty, to Marlene H. Dortch, Secretary, Federal Communications Commission at 1-2

(Nov. 16, 2023) (EXP Realty ex parte).

2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7989-7993, paras. 47-54.

Federal Communications Commission FCC-CIRC2312-02

appropriate action after receiving notice.

17. We agree with commenters that support requiring terminating providers to block in these

instances.

As one commenter noted, “[i]t is imperative that the Commission use every available tool to

stop bad actors from sending texts to consumers that are illegal” and “[w]hen an entity is on notice from

the Commission that a sender is transmitting suspected illegal texts, the entity should investigate and

potentially block texts from that sender.”

A similar model has worked well in the call blocking context

and allows the Enforcement Bureau to take clear, decisive action to protect consumers.

18. We thus disagree with commenters that argue a blocking mandate is inappropriate

because either providers already block texts or that the mandate may not otherwise significantly reduce

the volume of illegal texts.

These commenters offer no specific or compelling evidence that providers

consistently block all text traffic the Enforcement Bureau might identify as illegal.

Undisputed public

data makes clear that unwanted and illegal texts are rising as is the financial loss that accompanies them.

If providers’ voluntary efforts alone were enough to protect consumers, we would not see that trend.

Thus, we believe that, just as with call blocking, a block-upon-notice requirement complements, rather

than supplants, the work providers already do. The rule we adopt serves as an important backstop to

ensure that consumers are protected against illegal texts.

19. Our experience with call blocking demonstrates that the Enforcement Bureau can act

quickly and identify illegal traffic that providers have not blocked, and we see no reason to believe that it

cannot do so here. We thus disagree with commenters who argue that the blocking process we adopt

today may be slower, and thus less effective, than voluntary blocking measures by providers.

Nothing

we require slows voluntary blocking – providers can (and we expect them to) continue to block and to

improve their blocking going forward. Our new requirements instead will ensure they block texts their

current blocking fails to capture, a necessary complement to their existing work. Providers that argue

texters will have moved on to new numbers by the time the Enforcement Bureau identifies their texts

point to no specific evidence to that effect. Indeed, we believe that some texters undoubtedly use

numbers until their texts no longer reach recipients at all. And, as detailed further below, we disagree

with the comment that our requirements would unduly increase costs.

We believe that providers are

already familiar with the similar call blocking requirements and extending those to texting should not

The rule we adopt does not fully mirror the requirement for voice service providers. For example, here

terminating providers must block texts, while in call blocking the obligation is on gateway or originating providers.

As a result, failure to comply will not lead to all immediate downstream providers blocking all of the identified

provider’s traffic since there are no providers downstream from a terminating provider. Instead, terminating

providers that fail to comply may be subject to our traditional enforcement process, including monetary forfeitures.

See, e.g., ECAC Comments at 2-3; Bankers Joint Commenters Reply at 9; State Attorneys General Reply at 19-

20; VON Comments at 3-4 (supporting requiring blocking but also urging the Commission to add a traceback

component and ensure that traffic is illegal before requiring blocking).

Bankers Joint Commenters Reply at 9.

See, e.g., One Eye.

See, e.g., CTIA Comments at 7-8 & Reply at 5; M

AAWG Comments at 4; T-Mobile Reply at 2-5; Twilio Reply

at 3-7; Letter from Scott Bergmann, Senior Vice President, Regulatory Affairs, CTIA to Marlene H. Dortch,

Secretary, Federal Communications Commission (July 25, 2023) at 1-2 (CTIA ex parte).

See, e.g. CTIA Comments at 7-8 & Reply at 5; T-Mobile Reply at 2-5; Twilio Reply at 7.

See, e.g., 2020 Consumer Sentinel Data Book at 12; 2021 Consumer Sentinel Data Book at 12; 2022 Consumer

Sentinel Data Book at 12; Robokiller 2022 Report at 4; Robokiller 2023 Report at 4.

See, e.g., M

AAWG Comments at 4; NetNumber Comments at 2-6; T-Mobile Reply at 3-4.

CCA Comments at 2-3.

Federal Communications Commission FCC-CIRC2312-02

represent a material additional burden.

20. We adapt the call blocking rule to text blocking to recognize important differences. First,

we agree with commenters that there may not be a provider directly analogous to a gateway voice service

provider in texting.

We therefore we require only terminating mobile wireless providers to block.

Second, we do not require text blockers to also block traffic “substantially similar” to the traffic the

Enforcement Bureau identifies to avoid blocking based on analytics that could lead to over blocking.

Texters that run afoul of this rule and find all texts from a particular number blocked can obtain a new

number and, as long as they do not then use that number to send illegal texts, will not be blocked under

this rule. This approach addresses record concerns about liability for blocking incorrectly, as well as

potential burdens if we adopted a more expansive rule.

We also believe blocking based on a specific

number or numbers identified by the Enforcement Bureau will be competitively neutral.

Additionally,

we modify the process the Enforcement Bureau must follow, including not requiring an Initial

Determination Order or Final Determination Order. These steps are unnecessary, because there is no

requirement for downstream providers to block, and in fact no downstream providers at all, so a provider

does not lose access to the network if it fails to comply.

21. Notification of Suspected Illegal Texts. Under our new rules, the Enforcement Bureau

may notify terminating providers of suspected illegal texts from a number or numbers. The Notification

of Suspected Illegal Texts shall: (1) identify the number(s) used to originate the suspected illegal texts and

the date(s) the texts were sent or received; (2) provide the basis for the Enforcement Bureau’s reasonable

belief that the identified texts are unlawful;

(3) cite the statutory or regulatory provisions the suspected

illegal texts appear to violate; and (4) direct the provider receiving the notice that it must comply with

section 64.1200(s) of the Commission’s rules. The Notification of Suspected Illegal Texts shall specify a

reasonable time frame for the notified provider to complete its investigation and report its results to

Enforcement Bureau.

22. Responses to a Notification of Suspected Illegal Texts. Upon receiving such notice, the

provider must promptly investigate the texts and number(s) identified in the notice and begin blocking all

texts from the identified number(s) within the timeframe specified in the Notification of Suspected Illegal

Texts unless its investigation determines that the identified texts are legal. The provider must report to

the Enforcement Bureau the results of its investigation, including a certification that it is blocking texts

from the identified number(s) or, if it determines that the texts are lawful, an explanation as to why it has

reasonably concluded that the texts are not illegal.

See, e.g., CTIA Comments at 10.

See, e.g., ECAC Comments at 4 (The common use of content analysis in text message blocking means that there

is more opportunity and risk for overly broad interpretations of “substantially similar traffic.”); CTIA Reply at 13

(“A bright-line rule requiring mandatory blocking based on the content of certain text messages (e.g., URLs) would

only increase the incidences of blocking legitimate text messages.”).

CCA Comments at 2-3.

See, e.g., INCOMPAS Comments at 5; VON Comments at 3-4.

The Notification should include any relevant nonconfidential evidence from credible sources.

In our call blocking rules, we require the Enforcement Bureau to specify a timeframe of no fewer than 14 days for

a notified gateway provider to complete its investigation and report its results. 47 CFR § 64.1200(n)(5)(i)(A). Here,

however, we allow the Enforcement Bureau discretion to select a different response time, as the consequences of a

terminating mobile wireless provider failing to comply with the deadline are less significant than in call blocking,

where the ultimate consequence of a gateway provider failing to comply with our blocking rule is that immediate

downstream providers will block all of the provider’s traffic. See id. § 64.1200(n)(6). We note that the Enforcement

Bureau will need to be able demonstrate that whatever timeframe it establishes, if shorter than 14 days, is

reasonable.

Federal Communications Commission FCC-CIRC2312-02

23. If the provider cannot block further texts from some or all of the numbers because some

or all of the numbers have been reassigned, the provider shall promptly notify the Enforcement Bureau of

this fact and include any information it has obtained that demonstrates the number has been reassigned.

If, at any time in the future, the provider determines that the number has been reassigned, it shall notify

the Enforcement Bureau and cease blocking. In such instances, we encourage providers to continue to

use other available methods to protect their customers.

24. We do not adopt any additional protections in case of erroneous blocking, but any

individual or entity that believes its texts are being blocked under this rule in error can make use of the

point of contact required under section 64.1200(r) of the Commission’s rules.

If the provider determines

that blocking should cease, it should notify the Enforcement Bureau of that finding, including any

evidence that supports that finding.

B. National Do-Not-Call Registry

25. We adopt our proposal to codify the National DNC

Registry’s existing protections to

text messages.

Texters must have the consumer’s prior express invitation or permission before sending

a marketing text to a wireless number in the DNC Registry. The Commission previously concluded that

the national database should allow for the registration of wireless telephone numbers and that such action

will further the objectives of the TCPA and the Do-Not-Call Act.

Our action is consistent with federal

court opinions

and will deter both illegal texts and make DNC enforcement easier.

26. Commenters generally support this step.

As the Joint Consumer Commenters observe,

section 64.1200(e) of the Commission’s rules explicitly applies its DNC regulations to wireless telephone

numbers and it would be anomalous to conclude that text messages to wireless numbers are “calls” for

one part of the Commission’s TCPA rules but not for the DNC protections.

27. We disagree with a commenter that our proposal could undermine basic security

protections because third-party, two-factor authentication providers could be prohibited from contacting

We strongly encourage providers to make an effort to determine whether a number has been reassigned in order to

avoid blocking lawful texts from a different source. The Reassigned Numbers Database (RND) should be a useful

tool for accomplishing this, and we are adopting a waiver to permit such use of the RND. See infra paras. 100-103.

47 CFR § 64.1200(r).

The Commission stated in the 2003 TCPA Order that “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. 2003 TCPA Order, 18 FCC Rcd at 14039, para. 36.

Text Blocking Order and Further Notice at paras. 55-57.

2003 TCPA Order, 18 FCC Rcd at 14037-38, para. 33. In the 2003 TCPA Order, the Commission, pursuant to

section 227(c) of the Communications Act, adopted a national do-not-call registry, maintained by the FTC, to

provide residential consumers with a one-step option to prohibit unwanted telephone solicitations. 2003 TCPA

Order, 18 FCC Rcd at 14034-35, para. 28.

See, e.g., Barton v. Temescal Wellness, LLC, 525 F. Supp.3d 195 (D. Mass. 2021) (Barton); Sagar v. Kelly Auto.

Group, Inc., No. 21-cv-10540-PBS, 2021 WL 5567408 (D. Mass. Nov. 29, 2021) (Sagar); Hall v. Smosh Dot Com,

Inc., 72 F.4th 983, 986 (9th Cir. 2023) (Hall).

See, e.g., State Attorneys General Reply at 21 (stating that this 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); Joint Consumer Commenters at 13-15; M

AAWG Comments at 4;

CCA Comments at 5; Dobronski Comments at 9; Subbaiah Comments at 1; Shields Reply at 1-3.

Joint Consumer Commenters at 13-15.

Federal Communications Commission FCC-CIRC2312-02

end users whose numbers are on the National DNC Registry.

Two-factor authentication providers can

simply avoid including solicitation or telemarketing in their texts. Such parties have other ways to

contact their customers who may be on the DNC registry, such as obtaining their written consent for a

text or call, or through email.

C. Email-to-Text messages

28. We encourage providers to make email-to-text an opt-in service as a way to reduce the

number of fraudulent text messages consumers receive.

We do so in response to several commenters

that observe texts originating from email addresses, rather than telephone numbers, account for a

significant percentage of fraudulent text messages.

For example, ZipDX states that email-to-text

gateways enable anyone to send a text message to a mobile subscriber in relative anonymity.

Commenters state that the email-to-text messages process allows the sender to be anonymous because the

text is sent from an email account on a computer, not a phone number.

Commenters also observe a

spike in text impersonation scams originating from email-to-text gateways.

Below we seek comment on

requiring providers to make this service opt-in.

D. Closing the Lead Generator Loophole

29. We now make it unequivocally clear that texters and callers must obtain a consumer’s

prior express written consent from a single seller at a time on the comparison shopping websites that often

are the source of lead generation, thus closing the lead generator loophole.

Lead-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.

While many comparison

shopping websites that involve lead generation (i.e., websites that generate a consumer “lead” for a seller)

benefit consumers by enabling them to quickly compare goods and services and discover new sellers,

INCOMPAS Comments at 6.

The Commission previously concluded that the equipment used to originate Internet-to-phone text messages to

wireless numbers via email or via a wireless carrier’s web portal is an “automatic telephone dialing system” as

defined in the TCPA, and therefore calls made using the equipment require consent. 2015 TCPA Declaratory

Ruling and Order, 30 FCC Rcd at 8017-8022, paras. 111-122.

ZipDX Comments at 2; Somos Reply at 5; Bankers Joint Commenters Reply at 8.

ZipDX Comments at 2.

ZipDX Comments at 2; Somos Reply at 5 (brand impersonation scams are increasingly widespread form of text

scam).

Somos Reply at 5; Bankers Joint Commenters Reply at 8 (observing that bad actors are distributing large volumes

of SMS phishing messages from email addresses (which convert the e-mail message to an SMS text message)).

In the Further Notice of Proposed Rulemaking, we sought comment on a proposal that for TCPA consent “prior

express written consent to receive calls or texts must be made directly to one entity at a time.” Text Blocking Order

and Further Notice at para. 61.

USTelecom Comments at 2.

See, Federal Trade Commission, Follow The Lead: An FTC Workshop On Lead Generation (Oct. 30, 2015) at 5

(available at https://www.ftc.gov/system/files/documents/videos/follow-lead-ftc-workshop-lead-generation-part-

1/lgw-transcript-pt1.pdf) (noting that lead generation is a well-established industry that offers benefits to both

consumers and advertisers). But see also Federal Trade Commission, “Follow the Lead” Workshop, a Staff

Perspective (Sept. 2016) (available at https://www.ftc.gov/system/files/documents/reports/staff-perspective-follow-

lead/staff_perspective_follow_the_lead_workshop.pdf) (observing 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).

Federal Communications Commission FCC-CIRC2312-02

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

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.

172

91. 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: www.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).

92. 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 [email protected] or call

the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice).

93. Availability of Documents. Comments, reply comments, ex parte submissions, and the

Second Report and Order and Second 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

172

47 CFR § 1.49(f).

Federal Communications Commission FCC-CIRC2312-02

during regular business hours in the FCC Reference Center, Federal Communications Commission, 45 L

Street NE, Washington, D.C. 20554.

94. Providing Accountability Through Transparency Act: The Providing Accountability

Through Transparency Act requires each agency, in providing notice of a rulemaking, to post online a

brief plain-language summary of the proposed rule.

173

Accordingly, the Commission will publish the

required summary of this Further Notice of Proposed Rulemaking on https://www.fcc.gov/proposed-

rulemakings.

95. Additional Information. For additional information on this proceeding, contact Jerusha

Burnett, [email protected], 202 418-0526, or Mika Savir, [email protected], 202 418-0384, both

of the Consumer and Governmental Affairs Bureau, Consumer Policy Division.

VII. ORDERING CLAUSES

96. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 227, 251(e), 301, 303,

307, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 227, 251(e),

301, 303, 307, and 316, that this Second Report and Order and Second Further Notice of Proposed

Rulemaking IS ADOPTED.

97. IT IS FURTHER ORDERED that this Second Report and Order SHALL BE

EFFECTIVE 30 days after publication in the Federal Register, except that the amendments to section 47

CFR § 64.1200(f)(9), which may contain new or modified information collection requirements, will not

become effective until six months after publication in the Federal Register or 30 days after notice that the

Office of Management and Budget has completed review of any information collection requirements that

the Consumer and Governmental Affairs Bureau determines is required under the Paperwork Reduction

Act, whichever is later. The Commission directs the Consumer and Governmental Affairs Bureau to

announce the effective date for section 64.1200(f)(9) by subsequent Public Notice.

98. IT IS FURTHER ORDERED, that, the Commission’s rule restricting access to the

Reassigned Numbers Database only to callers to determine whether a number has been permanently

disconnected for the purpose of making lawful calls or sending lawful texts IS WAIVED to the extent

described in the Waiver Order (Section V) to allow mobile wireless providers to access the Reassigned

Numbers Database to determine whether a number has been permanently disconnected since the date(s)

of the suspected illegal texts described in a Notification of Suspected Illegal Texts.

99. IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental

Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Second Report and Order

and Second Further Notice of Proposed Rulemaking, including the Final Regulatory Flexibility Analysis,

to the Chief Counsel for Advocacy of the Small Business Administration.

173

5 U.S.C. § 553(b)(4). The Providing Accountability Through Transparency Act, Pub. L. No. 118-9 (2023),

amended section 553(b) of the Administrative Procedure Act.

Federal Communications Commission FCC-CIRC2312-02

on the website.

We require consent to one seller at a time, but this requirement does not specify how

many sellers can be listed on the web page; if the web page seeks to obtain prior express written consent

from multiple sellers, the webpage must obtain express consent separately for each seller.

In addition,

other sellers can be included on the web page for reasons other than obtaining consent, e.g., for contact

that does not require TCPA prior express written consent, or with information allowing the consumer to

contact the seller directly.

These commenters have not offered any data on why the number of sellers

they suggest is better than a different number of sellers.

34. Clear and Conspicuous Disclosure and Logically and Topically Related. We adopt two

additional protections to further guard against consent abuse. First, the one-to-one consent must come

after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or

robocalls from the seller. “Clear and conspicuous” means notice that would be apparent to a reasonable

consumer.

In addition, if compliance with the federal Electronic Signatures in Global and National

Commerce Act (the E-Sign Act)

is required for the consumer’s signature, then all the elements of E-

Sign must be present.

35. Second, we adopt our proposal that robotexts and robocalls that result from consumer

consent obtained on comparison shopping websites must be logically and topically related to that

website.

Thus, for example, a consumer giving consent on a car loan comparison shopping website does

not consent to get robotexts or robocalls about loan consolidation. We therefore agree with commenters

See, e.g., NAMIC Comments at 4 (proposing no more than 10); AAAB Comments at 1 (specify the maximum

number); SEIA Comments at 3 (proposing three); Chandler Comments at 2 (proposing five). We also do not adopt

the proposal to add to the definition of consent the types or categories of property, goods, or services about which

the person agrees to be called; the total number of callers that may call the person; and the maximum time period(s)

in which such callers may call the person. IMC Comments at 3. We also decline to limit how many times one seller

can call a consumer, as the issue is outside the scope of this proceeding. Drip Comments at 3-4 (proposing five calls

in 24 hours from one company).

See infra para. 38, (noting that "the website may offer a consumer a check box list that allows the consumer to

choose each individual caller that they wish to hear from”).

Our rules also require that the written consent agreement “include a clear and conspicuous disclosure” providing

certain information to the person signing, 47 CFR § 64.1200(f)(9), an additional requirement website publishers

must follow.

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.).

Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. §§ 7001-7006). The E-Sign Act establishes

rules for satisfying a requirement for a writing or a signature with their electronic equivalents. Joint Consumer

Commenters Reply at 5-7 (observing that the rules of the federal E-Sign Act apply whenever agreements consenting

to telemarketing calls are entered into online); Aug. 7 Congressional at 1 (“Although telemarketers routinely ignore

the requirements of the E-Sign Act, the legislation’s mandate for E-Sign consent before writings can be provided in

electronic records in 15 U.S.C. § 7001(c) is fully applicable.”).

See, e.g., Joint Consumer Commenters at 31-32 & Reply at 5-7; State Attorneys General Reply at 14-15. In the

2012 TCPA Order, the Commission concluded that consent obtained in compliance with the E-Sign Act will satisfy

the requirements of our rule, including permission obtained via an email, web site website form, text message,

telephone keypress, or voice recording. 2012 TCPA Order, 27 FCC Rcd at 1844, para. 34. Although we are

amending our prior express written consent TCPA rule here, we continue to find that compliance with the federal E-

Sign Act will satisfy the requirements of our revised rule.

Text Blocking Order and Further Notice at para. 61.