Lead Generators in the FCC’s Crosshairs
On February 23, 2023, the FCC released the public draft of the Report and Order and Further Notice of Proposed Rulemaking- CG Docket Nos. 21-402 and 02-278 (download pdf) which will be considered at the March 2023 Open Commission Meeting.
Report and Order
Regarding the Report and Order, the FCC is requiring all mobile wireless providers to take action to protect consumers from unwanted and illegal text messages, so consumers have at least one basic level of protection. This means that mobile wireless providers will be required to block texts that appear to be from numbers that are on a reasonable Do Not Originate or “DNO” list.
Additionally, the FCC is also requiring each wireless mobile provider to make a public single point of contact for text senders if issues arise regarding their texts being blocked. This phone number for the single point of contact must be posted on a public facing website.
The FCC reported that many mobile wireless providers previously commented that they are already employing measures to block text messages that include DNO based blocking so the FCC believes that having this requirement is the best balance between protecting consumers from illegal texts and also should not be imposing too large of a burden on wireless mobile providers. Many commenters have requested that the FCC require a time limit for resolving blocking error complaints, but the FCC declined this.
The Report and Order regarding mandatory blocking of texts that are highly likely to be illegal will be effective 30 days after publication in the Federal Register.
Why this is important
Marketers already face several issues regarding call labeling and texts have become a more popular way for companies to reach consumers. Many commenters had concerns that this order will cause providers to accidentally block texts that are legal.
Further Notice of Proposed Rulemaking
In the Notice of Proposed Rulemaking or “NPRM” the FCC seeks comment on the following proposals:
- Whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams
- Whether and how the Commission can encourage efforts to develop technical solutions for text message authentication
- Whether to extend National DNC Registry protections to text messages
- And whether to ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers
Why This is important
Although the FCC has stated that “text messages” are “calls” for TCPA purposes, it has never officially stated that text messages are subject to DNC protections. Additionally, this proposed order can be a huge problem for marketing companies that utilize lead generation companies that list affiliate partners in their disclosures. The FCC argues that when companies link a large numbers of affiliate partners in hyperlinks of their disclosure, it fails to meet the clear and conspicuous requirement for valid consent. However, commenters have argued that this will prevent consumers from being able to utilize comparison shopping websites to ensure they are well informed prior to purchasing. These potential changes could have a huge impact on any marketing company that lists more than one company in their disclosure.
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.
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