We aim to highlight the importance of due diligence in lead campaigns and to keep our customers and industry associates up-to-date with the compliance news reported for our industry. This article is reprinted here for our readers, courtesy of our legal partners Mac Murray & Shuster LLP.
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by Josh Stevens, Partner, Mac Murray & Shuster LLP
At its open meeting scheduled for March 16, 2023, the FCC is set to wade into several areas with profound consequences for American businesses and consumers with a packed regulatory agenda. Spanning topics as diverse as spectrum for space stations, prison telephone rates, and equipment testing standards, the agenda contains numerous interesting elements; however, the three likely to be most consequential for a wide swath of Americans, and the focus of this article, are the Commission’s proposed enhancements to robocall mitigation efforts, which permit certain types of text messages to be blocked and restrict the use of lead forms to obtain prior express written consent for multiple sellers.
Robocall Mitigation Enhancements
Previously, the FCC mandated voice service providers adopt a call authentication framework known as STIR/SHAKEN. As part of this requirement, voice service providers (VSP) must file a report in the FCC’s Robocall Mitigation Database indicating their level of implementation and, if not fully implemented, a written robocall mitigation plan. If a VSP does not file in the Database, or if their filing is rejected, then other VSPs are prohibited from carrying their traffic. It goes without saying that a ban on carriage would be ruinous to many VSPs. However, it also is obvious from reading just a handful of plans in the Database that many lack detail and likely do not satisfy the FCC’s expectations.
In its Sixth Report and Order, the FCC seeks to remedy this problem and expand its ability to reject Database filings. Under the Order, all providers, including those that have fully implemented STIR/SHAKEN, are required to meet the same reasonable steps to mitigate robocalls as providers that have not fully implemented STIR/SHAKEN. This is needed, in the FCC’s view, as a backstop because “STIR/SHAKEN is not a silver bullet.” Accordingly, the filing obligation will become universal.
Not only is the FCC expanding who must file robocall mitigation plans, it also is issuing more detailed standards for the content of those filings including, but not limited to, “(1) voice service providers must describe how they are meeting their existing obligation to take affirmative, effective measures to prevent new and renewing customers from originating illegal calls; (2) non-gateway intermediate providers and voice service providers must, like gateway providers, describe any “know-your-upstream provider” procedures in place designed to mitigate illegal robocalls; and (3) all providers must describe any call analytics systems they use to identify and block illegal traffic, including whether they use a third-party vendor or vendors and the name of the vendor(s).”
Providers must also, amongst other things, describe any contractual provisions designed to mitigate illegal robocalls, provide information about their role in the call chain, certify they have not been prohibited from filing in the Database, and state whether they are under a law enforcement action or investigation due to suspected unlawful robocalling or spoofing. These new filings will be due by the later of 30 days after the Office of Management and Budget files a notice of approval in the Federal Register or a deadline set by the FCC’s Wireline Competition Bureau. Assuming the Order is adopted at the Open Meeting, we believe this likely means an effective date in the Summer.
Along with increasing robocall mitigation filing requirements, the FCC is also adopting new procedures for rejecting a facially deficient Database filing. While the FCC does not specifically define “facially deficient,” it gives a few examples such as when a provider provides only non-responsive documents, general information about how STIR/SHAKEN works without specific information about the provider’s own robocall mitigation plans, or a certification that is not in English and does not have an English translation. In this new two-step process, the Enforcement Bureau will issue a notice and give the provider an opportunity to cure the deficiency or explain why it is not deficient within 10 days. If the deficiency is not corrected or the provider fails to establish that the filing is not deficient by the deadline, then the Enforcement Bureau will issue an order removing the provider from the Database. This expedited procedure will encourage providers to look again at their filed plans and ensure they meet at least a minimum standard of quality to not be classified as “facially deficient.”
A couple years ago as the FCC was beginning its current crackdown on illegal robocalls, it permitted VSPs to automatically block calls purporting to originate from a “do not originate” list composed of certain categories of telephone numbers that would never initiate a call (e.g., invalid, unallocated, or unused numbers) or that were listed by the subscriber of the number. In its proposed Report and Order related to robotext blocking, the FCC intends to extend the same concept to the text message environment. Likewise, just as required for call blocking, providers will be required to make public a single point of contact to receive and resolve complaints of erroneous blocking. These changes will be effective 30 days after publication in the Federal Register, so likely in late Spring.
Text Messages Under DNC?
Interestingly, the Order also acknowledges that the FCC never explicitly included text messages within the scope of its Do Not Call (DNC) rules. The DNC rules prohibit initiating telephone solicitations to “residential telephone subscriber[s]” listed on the DNC registry unless an exception applies. The FCC previously extended this to cover wireless subscribers. In previous Orders under the TCPA, the FCC has also treated texts equivalent to calls – a position courts have likewise followed. Now, as part of a Further Notice of Proposed Rulemaking, the FCC seeks comment as to whether it should formally extend DNC protections to texts.
We fully expect, regardless of comments received, that the FCC will ultimately decide to extend these important consumer protections to cover texts; however, this raises an important question for any business currently facing a TCPA suit on the basis of DNC violations for texts: Is the suit valid? One could argue with a straight face that the FCC’s acknowledgement is important in interpreting the scope of the DNC rules and those suits should be dismissed. Only time will tell how defendants handle this question and whether courts agree, but it is something to watch.
Lead Generation Loophole
Many have speculated for some time that the FCC may attempt to close the “lead generation loophole” that arguably allows multiple businesses to obtain prior express written consent for marketing communications under the TCPA. You may have seen lead forms set up with this model, usually with a consent disclosure that names the provider of the website you are on and its “marketing partners” or “affiliates” with those terms linked to a list of other companies that could be dozens or hundreds of companies long.
On the one hand, these types of lead forms are often used for comparison shopping purposes, such as submitting a request for a loan product from multiple potential lenders simultaneously. On the other hand, they are frequently used in contexts that regulators have lamented do not align with consumer expectations; for example, when a consumer submits a form to enter a sweepstakes and their information is subsequently provided as an ”opt-in lead” to hundreds of companies across numerous product types that have nothing to do with the sweepstakes purpose for which the consumer submitted their information. Under the FCC’s proposed changes to the definition of prior express written consent, this could be no more.
If passed without amendment, the FCC’s new definition of prior express written consent would require the lead form to obtain consent for only one entity, or if the form obtains consent for multiple entities, those entities must be “logically and topically associated.” Further, the entire list of entities must be clearly and conspicuously disclosed to the consumer, meaning at a minimum, “displayed on the same web page where the consumer gives consent.” Because of prior case law and regulatory guidance around the phrase “clear and conspicuous,” this latter requirement likely means listing the entities in the consent disclosure itself or in close proximity, not in a footnote or buried in an inconspicuous part of the webpage.
Many lead generation companies have built their business utilizing lead forms that would no longer provide prior express written consent under the FCC’s proposal, thereby requiring significant re-tooling and potentially jeopardizing jobs. Even for lead generation companies that utilize forms for “logically and topically associated” companies, the requirement to display the entities on the same webpage will necessitate reconsideration of many form structures. Certainly, many industry and consumer groups and companies will have much to say during the comment window, and we’ll let them argue the wisdom of these changes. Comments can be filed for 30 days from the date of the proposal’s publication in the Federal Register (and 60 days from the date of publication for reply comments).
What should you do now?
If you are a business that could be affected by any of the above actions, take the time to read the FCC’s proposals in full and work with counsel to evaluate their potential impact on your operations. If a comment period is available, such as for the proposals to expand the DNC rules to explicitly include text messages and the revised prior express written consent definition, make your voice heard. We stand ready to assist companies and organizations that would like to submit comments. Additionally, the Professional Associations for Customer Engagement (PACE), for which we serve as General Counsel, is forming a working group to develop organizational comments. If you are interested in joining PACE’s effort, you may contact Rob Seaver, PACE Executive Director, at email@example.com.
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