Strengthening the Ability of Consumers To Stop Robocalls
| Published date | 05 March 2024 |
| Record Number | 2024-04586 |
| Citation | 89 FR 15802 |
| Court | Federal Communications Commission |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 44 (Tuesday, March 5, 2024)
[Federal Register Volume 89, Number 44 (Tuesday, March 5, 2024)]
[Proposed Rules]
[Pages 15802-15806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04586]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; FCC 24-24; FR ID 205124]
Strengthening the Ability of Consumers To Stop Robocalls
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks comment on whether the Telephone Consumer Protection
(TCPA) applies to robocalls and robotexts from wireless providers to
their own subscribers and therefore whether such providers must have
consent to make robocalls and send robotexts to their own subscribers.
To the extent that wireless providers have consent to robocall or
robotext their own subscribers, the Commission seeks comment on whether
wireless subscribers can exercise their right to revoke such consent by
communicating a revocation of consent request to their wireless
provider and that such requests must be honored. In addition, the
Commission seeks comment on a request to require automated opt-out
mechanisms on every call that uses an artificial or prerecorded voice.
DATES: Comments are due on or before April 4, 2024, and reply comments
are due on or before April 19, 2024. Written comments on the Paperwork
Reduction Act (PRA) proposed information collection requirements must
be submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before May 6, 2024.
ADDRESSES: Pursuant to Sec. Sec. 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 in this document.
Comments and reply 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). Interested
parties may file comments or reply comments, identified by CG Docket
No. 02-278 by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing ECFS: https://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 220701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 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 (March 19, 2020),
https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
People with Disabilities: Contact the FCC to request reasonable
accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact Richard D. Smith, Competition Policy Division, Consumer and
Governmental Affairs Bureau, at [email protected] or at (717) 338-
2797. For additional information concerning the Paperwork Reduction Act
proposed information collection requirements contained in this
document, send an email to [email protected] or contact Cathy Williams at
(202) 418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM) in CG Docket No. 02-278,
adopted on February 15, 2024, and released on February 16, 2024. The
full text of this document is available for public inspection at the
following internet address: https://docs.fcc.gov/public/attachments/FCC-24-24A1.pdf. To request materials in accessible formats for people
with disabilities (e.g., braille, large print, electronic files, audio
format, etc.), send an email to [email protected] or call the Consumer &
Governmental Affairs Bureau at (202) 418-0530 (voice).
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act proposed information collection
requirements contained herein should be submitted to the Federal
Communications Commission email to [email protected] and to Cathy Williams,
FCC, via email to [email protected].
Paperwork Reduction Act
This document 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 the information collection requirements contained in this
document, as required by the Paperwork Reduction Act of
[[Page 15803]]
1995, Public Law 104-13. Pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the
Commission seeks specific comment on how it might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
Providing Accountability Through Transparency Act
The Providing Accountability Through Transparency Act, Public Law
118-9, requires each agency, in providing notice of a rulemaking, to
post online a brief plain-language summary of the proposed rule. The
required summary of the Further Notice of Proposed Rulemaking is
available at https://www.fcc.gov/proposed-rulemakings.
Synopsis
A. Wireless Provider Exemption
1. The Commission seeks comment on whether the TCPA applies to
robocalls and robotexts from wireless providers to their own
subscribers and therefore such providers must have consent to make
prerecorded voice, artificial voice, or autodialed calls or texts to
their own subscribers. The Commission seeks comment on whether wireless
providers satisfy any TCPA consent obligation pursuant to the unique
nature of the relationship and service that they provide to their
subscribers. Specifically, the Commission asks whether wireless
providers require additional consent beyond that provided by the unique
nature of this relationship with their subscribers to satisfy this
requirement. To the extent that wireless providers have consent to
robocall or robotext their own subscribers, the Commission proposes
that wireless subscribers, as any other called party, be able to revoke
such consent by communicating a revocation of consent request to their
wireless provider and that such request must be honored. The Commission
seeks comment on these issues as set forth in more detail below.
2. In the 2023 TCPA Consent NPRM, published at 88 FR 42034 on June
29, 2023, the Commission proposed to require wireless providers to
honor their customers' requests to cease robocalls and robotexts. To
effectuate this result, the Commission proposed at that time to create
and codify a qualified exemption--based on its authority under section
227(b)(2)(C)--for informational robocalls and robotexts from wireless
providers to their subscribers, subject to certain conditions including
honoring requests to opt out of such communications. In response to
requests for comments on this proposal, wireless providers suggest that
the TCPA's prohibitions do not apply to communications from wireless
providers to their subscribers because there is no charge to the
subscriber and they have a unique relationship with their subscribers.
In light of these arguments, the Commission now revisits that proposal.
3. The Commission now seeks further comment on the argument that,
pursuant to the 1992 TCPA Order, published at 57 FR 48333 on October
23, 1992, or statutory language, wireless providers are wholly excluded
from the application of the TCPA's requirement to obtain consent before
robocalling or robotexting their own subscribers because there is no
charge imposed on the subscriber. In 1992, the Commission concluded
that wireless carriers need not obtain ``additional consent'' prior to
initiating autodialed, artificial voice, or prerecorded voice calls to
their own subscribers. Although it stated that such robocalls could be
made by wireless providers to their own subscribers without a charge,
the Commission did not specify whether it intended to wholly exclude
wireless providers from the statutory obligation to obtain consent
based solely on the calls being free to the called party. Moreover,
shortly following this ruling Congress amended the TCPA to grant the
Commission express statutory authority to exempt from the prior-
express-consent requirement calls to wireless numbers that are not
charged to the called party subject to such conditions as the
Commission deems necessary to protect the privacy rights afforded under
the TCPA. Section 227(b)(2)(C)'s authority to grant exemptions from the
prior-express-consent requirement is predicated on the ability of
callers to make such calls with no charge to the consumer. The
Commission believes Congress could not have meant the pre-amended TCPA
to exempt free calls from the consent requirement because its amendment
describes exactly how the Commission must go about that, including an
analysis of each type of exempted call and an affirmative showing that
such an exemption does not unduly harm consumer privacy.
4. Similarly, the Commission is not persuaded that the pre-amended
TCPA itself exempts robocalls to wireless subscribers for which there
is no charge. The TCPA prohibits robocalls absent an emergency purpose
or with the prior express consent of the called party ``to any
telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is charged
for the call.'' As the Court of Appeals for the Eleventh Circuit
explained in interpreting this provision: ``[t]he rule of the last
antecedent requires the phrase `for which the called party is charged
for the call,' [in section 227(b)(1)], `to be applied to the words or
phrase immediately preceding (i.e., ``any service''), and not to be
construed as extending to or including others more remote.'' As the
court concluded ``[i]f the phrase `any service for which the called
party is charged for the call' requires that the party be charged per
call for the `paging service, cellular telephone service, specialized
mobile radio service, or other radio common carrier service' in order
for the party to prohibit autodialed calls, then the listing of these
services would be superfluous because they are already included under
the term `any service for which the called party is charged.' ''
Another Federal circuit court decision has reached the same conclusion.
5. This interpretation of the relevant statutory provision is
consistent with the Commission's own treatment of robocalls to wireless
numbers for which there is no charge to the called party. For example,
the Commission has allowed certain specific categories of robocalls to
wireless telephone numbers that can be made without a charge to the
called party only when they have been granted an exemption from the
TCPA's consent obligation. The Commission, therefore, seeks comment on
the contention that either the 1992 TCPA Order or the TCPA itself
wholly excludes wireless providers from the TCPA's consent requirement
when communicating with their own subscribers solely because their
calls and texts are free to their subscribers. Rather, read in light of
the subsequent statutory amendment, the Commission believes the 1992
TCPA Order's reference to the ability of wireless providers to
communicate with their subscribers without imposing any charge on those
subscribers is an example of the unique nature of the wireless provider
and subscriber relationship that supported the Commission's conclusion
that such providers need not obtain ``additional consent'' under the
TCPA to robocall their own subscribers. The Commission seeks comment on
this analysis.
6. Should the Commission determine that wireless providers are
required to obtain consent and have effectively obtained consent to
make robocalls and send robotexts to their own subscribers by virtue of
their unique relationship
[[Page 15804]]
with their subscribers, the Commission seeks comment on whether this
consent should extend to robocalls and robotexts that contain
telemarketing or advertisements. In 2012, the Commission adopted rules
requiring prior express consent to be obtained in writing for
autodialed or prerecorded telemarketing calls to wireless numbers. In
so doing, however, the Commission has not extended this requirement to
robocalls made by a wireless provider to their own subscribers. As a
result, the Commission seeks comment on whether it should revisit this
issue to require prior express written consent to be obtained for any
such robocall or robotext that contains telemarketing or advertising.
7. The Commission seeks comment on whether the right to revoke
consent extends to wireless subscribers when they receive unwanted
robocalls and robotexts from their wireless provider, just as it does
to any robocalls or texts sent pursuant to the TCPA. As a result, the
Commission seeks comment on whether wireless providers must honor any
revocation or opt-out requests from their own subscribers that are made
through any reasonable means and at any time. The Commission seeks
comment on whether, if it were to find wireless providers have consent
based on having a unique relationship with their subscribers, the
Commission should codify a new rule to that effect that would make
clear consumers also have a right to revoke consent to such
communications. Although many of the messages sent by wireless
providers to their own subscribers may be welcome and provide useful
information, as wireless commenters suggest, the Commission does not
believe there is any reason to deprive wireless subscribers of the same
right to exercise revocation of consent when they make an affirmative
request not to receive such communications. In this circumstance, the
subscriber has made clear that they do not wish to receive such further
communications from their wireless provider regardless of the merits of
the robocalls and robotexts that they receive. The record in this
matter confirms that at least some wireless subscribers do not wish to
receive these communications from their wireless provider.
8. The Commission does not believe that any obligation to honor
revocation requests is unduly burdensome to wireless providers. In
fact, the record suggests that some wireless providers already honor
opt-out requests on many communications to subscribers. Other callers
have implemented such measures for decades to comply with the
Commission's rules. Nevertheless, the Commission seeks comment on ways
to reduce any new burdens such a requirement might entail, including
for smaller wireless providers. The Commission seeks comment on this
proposal and any other issues commenters may wish to raise in this
context, including any alternative proposals set forth in the TCPA
Consent NPRM that would allow it to balance consumer privacy rights
without unduly interfering with the ability of wireless providers to
communicate critical information to their subscribers.
9. Having proposed to confirm that wireless providers are subject
to the TCPA when communicating with their subscribers, the Commission
seeks comment on whether wireless providers have effectively obtained
consent to make robocalls and send robotexts to their own subscribers
by virtue of their unique relationship with their subscribers. Several
wireless providers citing the 1992 TCPA Order contend that an inherent
unique relationship renders it unnecessary to obtain any additional
form of consent to communicate with their own subscribers.
10. Wireless providers are in a unique position to accurately
obtain, track, and maintain records of their subscribers' activities,
including prepaid subscribers, to ensure that they are sent critical,
time-sensitive information to avoid inadvertently losing their wireless
service or experiencing bill shock from overages or roaming fees. The
Commission has acknowledged the benefit of these communications and has
encouraged wireless providers to send them to their wireless
subscribers. In some instances, the Commission's rules require these
communications so that, for example, low-income consumers do not
inadvertently lose benefits that make their service affordable. The
ability to provide such information is a unique function of the
wireless provider and subscriber relationship that advances the
interests of consumers by ensuring they are informed of any potential
risk to the ongoing provision of their wireless service. As a result,
the Commission agrees that wireless providers have a unique
relationship that allows them to send critical information to their
subscribers that their subscribers may welcome. In addition, wireless
providers are in a unique position in that they offer the specific
service over which these communications are made, including the
provision of the unique telephone number at which subscribers are
contacted over that service. The Commission seeks comment on whether
the nature of this unique relationship and service continues to render
it unnecessary for wireless providers to obtain any additional consent
from their subscribers, as the Commission concluded in the 1992 TCPA
Order. The Commission seeks comment on whether that view is incorrect,
e.g., because the TCPA requires a more affirmative statement from a
consumer that they consent to robocalls. Parties arguing for this
conclusion should state whether such a view could upset the status quo
such that millions of subscribers who may currently receive robocalls
and robotexts they welcome from their providers would no longer be able
to receive them unless they take steps to consent. And, if so, the
Commission seeks comment on how it should proceed to avoid
inadvertently disrupting the flow of information that wireless
subscribers have come to expect or burdening wireless providers with
the necessity of obtaining such consent from their existing
subscribers.
B. Expanding Opt-Out Requirements
11. The Commission seeks comment on the National Consumer Law
Center's (NCLC) request that the Commission amend section 64.1200(b)(3)
of its rules to require an automated opt-out mechanism on every call
that contains an artificial or prerecorded voice. NCLC argues that
consumers ``complain about the seemingly unstoppable'' prerecorded non-
marketing calls from entities such as medical professionals and, in
NCLC's view, that would harmonize the treatment of such calls with
those to residential lines. The Commission seeks comment on this
proposal, including whether such a change is necessary and what the
compliance costs of such a change would be on callers including any
alternatives that would minimize compliance burdens on smaller
entities.
Initial Regulatory Flexibility Analysis
12. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA) 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
in the FNPRM. The Commission will send a copy of this FNPRM, including
this IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). In addition, the FNPRM and the
[[Page 15805]]
IRFA (or summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
13. In the FNPRM, the Commission seeks comment on whether the TCPA
applies to robocalls and robotexts from wireless providers to their own
subscribers and therefore such providers must have consent to make
prerecorded voice, artificial voice, or autodialed calls or texts to
their own subscribers. The Commission seeks comment on whether wireless
providers satisfy the TCPA's consent obligation pursuant to the unique
nature of the relationship and service that they provide to their
subscribers. To the extent that wireless providers have consent to
robocall or robotext their own subscribers, the Commission seeks
comment on whether wireless subscribers, as any other called party, can
exercise their right to revoke such consent by communicating a
revocation of consent request to their wireless provider and that such
request must be honored. Lastly, the Commission seeks comment on a
request to amend its rules to require automated opt-out mechanisms for
every non-telemarketing call that uses an artificial or prerecorded
voice that can be used by the called party to stop such calls.
B. Legal Basis
14. The proposed action is authorized pursuant to section 227 of
the Communications Act of 1934, as amended.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
15. 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. The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. 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.
16. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. The Commission, therefore
describe at the outset, three broad groups of small entities that could
be directly affected herein. 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. These types
of small businesses represent 99.9% of all businesses in the United
States, which translates to 33.2 million businesses.
17. 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.''
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. 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.
18. 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.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate there were
90,075 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,931 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 12,040 special purpose governments--independent school districts
with enrollment populations of less than 50,000. 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.''
19. Wireless Carriers and Service Providers. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with a SBA small business size standard applicable to these service
providers. The SBA small business size standard for this industry
classifies a business as small if it has 1,500 or fewer employees. U.S.
Census Bureau data for 2017 show that there were 2,893 firms that
operated in this industry for the entire year. Of this number, 2,837
firms employed fewer than 250 employees. Additionally, based on
Commission data in the 2022 Universal Service Monitoring Report, as of
December 31, 2021, there were 594 providers that reported they were
engaged in the provision of wireless services. Of these providers, the
Commission estimates that 511 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
20. The FNPRM seeks comment on issues that may alter the
Commission's current information collection, reporting, recordkeeping,
or compliance requirements for small entities. The Commission seeks
comment on whether wireless providers have effectively obtained consent
to make robocalls and send robotexts to their own subscribers by virtue
of their unique relationship with their subscribers or if they must
obtain such consent for robocalls and robotexts. The Commission seeks
comment on whether the right to revoke consent extends to wireless
subscribers when they receive unwanted robocalls and robotexts from
their wireless provider, just as it does to any robocalls or robotexts
sent pursuant to the TCPA. In particular, whether wireless providers
would be required to honor any revocation or opt-out requests from
their own subscribers that are made through any reasonable means and at
any time. If adopted, this may require wireless providers to obtain
consent from their own subscribers for robocalls and robotexts and may
require such providers to maintain records on whether they have such
consent and on any revocation of consent by their subscribers.
Additionally, such revocation may be from all robocalls and robotexts,
or from certain ones (such as marketing) and the wireless providers
would be required to maintain such records on the specific revocation
requests. The Commission also seeks comment on a request to require
every call that uses an artificial or prerecorded voice to provide an
automated opt-out mechanism. There is not sufficient information in the
record to quantify the cost of compliance for small entities, or to
determine whether it will be necessary for small entities to hire
professionals to comply with these proposals. The Commission will
review the record and further examine the economic impact of the
proposals on small entities following the review of
[[Page 15806]]
comments filed in response to the FNPRM.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
21. The RFA requires an agency to describe any significant
alternatives that could minimize impacts to small entities 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.''
22. In the FNPRM the Commission seeks comment on several
alternatives that may impact small entities. The Commission seeks
comment on whether wireless providers have effectively obtained consent
to make robocalls and send robotexts to their own subscribers by virtue
of their unique relationship with their subscribers and whether this
consent extends to telemarketing or other messages, or if providers
must obtain consent from their subscribers for such robocalls and
robotexts. The Commission seeks comment on whether the right to revoke
consent for robocalls and robotexts extends to wireless subscribers
when they receive unwanted robocalls and robotexts from their own
wireless provider, just as it does to any robocalls or robotexts sent
to a consumer. The Commission seeks comment on whether wireless
providers must honor any revocation or opt-out requests from their own
subscribers that are made through any reasonable means and at any time.
23. This proposal, if adopted, would apply to all wireless
providers, including small wireless entities. The Commission expects
that the obligation to honor revocation requests will not be unduly
burdensome to small wireless providers and recognizes that some
wireless providers already honor opt-out requests on many
communications to subscribers. The Commission observes that other
entities have implemented such measures to honor revocation requests
for decades to comply with the Commission's rules. Nevertheless, the
Commission seeks comment on ways to reduce any new burdens such
requirements might create for smaller wireless providers. Lastly, the
Commission seeks comment on any burdens imposed by requiring all
artificial or prerecorded voice calls to provide an automated opt-out
mechanism to stop such calls including any alternatives that would
minimize the impact on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
24. None.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024-04586 Filed 3-4-24; 8:45 am]
BILLING CODE 6712-01-P
