FCC Proposes Action on Fraud and Spam Text Messaging

Initial and response comments on the proposals in the NPRM are due 30 days and 45 days, respectively, after the Notice is published in the Federal Register. Below we provide a key item clarification.

Introduction

Americans are increasingly inundated with unwanted and potentially harmful text messages. In 2021 alone, the Commission received 15,300 complaints, with the number of complaints reaching an all-time high in 2022. Complaints in 2020 were raised by 146% over complaints in 2019, indicating a more serious problem. The FCC notes that many of the same problems that robocalls present against consumers from unwanted robocalls are also presented by unwanted texts: they invade privacy and are a vehicle for consumer fraud and identity theft. Text messages are uniquely dangerous in that they can include legitimate-looking links intended to fool the recipient into providing personal and financial information. The data shows that text messages are more likely to be sent by the recipient, whereas spam calls are often ignored, and spam emails are filtered before they reach the recipient’s inbox. In 2020, more than $86 million was stolen by scammers through fraudulent texting devices.

Since 2017, the FCC has allowed voice service providers to block, before they reach the consumer’s phone, highly illegal phone calls, such as those from invalid, unused or unused numbers and numbers on the “Do-Not- Originate” list. Two years later, the FCC allowed voice service providers to use analytics to identify and block unwanted calls, with a feature tailored to consumers. By 2020, voice service providers will be allowed to intercept calls, without users’ choice or outside, at the network level if the provider has applied analytics using caller ID information to identify calls and patterns that are highly likely to be illegal. The FCC then required providers to take steps to stop illegal traffic on their networks. These efforts do not currently apply to text messages, but the FCC tentatively concludes in the NPRM that some providers must implement this for text message caller authentication. The Commission recognizes that text blocking poses a risk to consumers of not receiving the desired, legitimate message, and asks if it requires text blocking providers to establish a single point of contact to receive complaints and verify the authenticity of texts. If the author can make a credible claim that his text is not blocked, should the provider be required to block the number in question until circumstances change?

To date, scammers have successfully used several techniques to evade blocking attempts. Machines called “SIM boxes” can be loaded with hundreds of SIM cards, which can send the box to a large volume of texts, appearing to send texts from individual phones, which allows the messages to pass through the filters of the wireless network volume. Another technique, “snow messaging,” broadcasts messages through a list of phone numbers or short codes to avoid volume limitations. “Account takeovers” allow a scammer to send unwanted messages by gaining unauthorized access to the message sender’s account with a cloud-based provider.

Regulatory background and legal authority

In the Notice, the FCC identified several regulatory pathways already in place to reduce or eliminate harmful text messages and one that is effective against robocalls, but does not yet extend to text messages:

  • Telephone Consumer Protection Act (TCPA): Under the TCPA, callers must generally be required to obtain consent from the consumer before any calls are made using an autodialing system or an artificial or prerecorded voice. Since 2003, the consent requirement has applied to text messages originating from an autodialing system. A 2015 ruling and regulation applied the consent requirement to internet-to-phone messages that are sent via email or via a wireless carrier’s web portal.
  • National Do-Not-Call Registry: Telemarketers are generally prohibited from making voice calls or text messages asking for a phone number that is on file.
  • Controlling Unsolicited Attacks on Pornography and Marketing Act of 2003 (CAN-SPAM Act): The CAN-SPAM Act and FCC Rules encourage the act to apply to commercial e-mail and text messages sent for the purpose of “fixed commercial advertisement or promotion of a commercial product or service.”
  • The Truth in Caller ID Act of 2009: In 2019, the FCC expanded its Truth in Caller ID rules for text messages, prohibiting caller ID spoofing used to defraud or harm the recipient.
  • I’m going to do it: It is designed as a framework for authenticating caller ID information at the network level and blocking spoofed calls, working in CITIS/LACTIS standards for ongoing text messages. The FCC is seeking comments on whether to update its efforts to move SHOCK/SHOCK authentication to text messages.

Commenters ask the FCC to consider its authority to implement the policies discussed in the NPRM, namely whether the FCC can apply its section 251(e) powers to block text. That section of the Communications Act gives the Commission exclusive jurisdiction over parts of the North American Numbering Plan that relate to the United States, and the Commission used the authority to implement call blocking. The FCC believes the Truth-in-Caller ID Act provides the authority for all actions it takes against caller ID spoofing.

Tentative Propositions and Conclusions

Amet Ban Illegal Texts

As it did in the phone calls, the FCC required mobile phone providers to block network-level text messages that appear to be coming from invalid, unfamiliar or unfamiliar numbers and numbers on the “Do-Not-Originate” list. The FCC is seeking comment on whether such blocking should be required or whether providers should instead be fine. Will blocking such messages have a material impact on the issue? The FCC also wants to know what, if any, methods providers are currently using to block unwanted texts. The commission notes that its aggressive action to stop unwanted phone calls may have forced scammers to increase their use of text messages.

The commission is also seeking comment on the extent to which spoofing is a problem with text messaging and whether additional measures should be taken to prevent mobile phone providers from intercepting texts that appear to come from spoofed numbers.

The Commission tentatively concluded that providers should implement CALLER ID authentication for text messages, suggesting that industry groups increase standards to extend some elements of the STIR/LAC framework to text messages. The Commission is seeking comments on the state of their industry, what additional work needs to be completed and how long it will take, and, once completed, what steps providers will take to implement message authentication and how long it will take effect. and what was the estimation.

Mindful of the potential for abuse or errors, the Commission will consider all the tools used by providers to determine if the text is highly likely to be unlawfully applied in a non-discriminatory, competitive and content-neutral manner. The blocking of the provider could not be based on the identity of other providers in the way of transmission and the blocking cannot be applied to the content simply because it is foreign. The Commission is also asking whether any terminating provider that blocks text must be required to provide a single point of contact, available on the terminating provider’s public web page, for receiving text blocking error complaints and verifying the authenticity of texting parties. worse information is provided by caller ID authentication. If so, should it also require that the terminating provider resolve disputes involving CALLER ID authentication information within a reasonable time and, at a minimum, resolve status updates within 24 hours? In addition, when the author believes that the blocking is erroneous and the terminating provider determines that the text is not blocked, or that the delivery of the text is not appropriate, the Commission asks whether the terminating provider is required to immediately stop the text. treatment is in that number, unless the situation changes.

Over the Top (OTT) Message

Recognizing that any new rules applying only to SMS and MMS texts may not capture the entire texting landscape, the FCC wants to know how prevalent OTT messaging use is, whether more or fewer messages are being sent via OTT services, and whether the FCC’s current definition of “text messaging” rules would apply. to OTT messages sent to a wireless phone number but not to messages sent to other users in the same application. OTT text messaging services use Wi-Fi or cellular data networks to transmit messages, as opposed to SMS/MMS texts that use cellular networks. Apple iMessage, Meta WhatsApp and Facebook Messenger are examples of popular OTT messaging platforms.

Emergency Communications

Under the Commission’s current rule, certain text message providers are required to respond to emergency text messages to a Public Safety Program (PSAP) such as 9-1-1 call centers, where such centers are qualified to receive text messages. Where a PSAP is unable to receive a 9-1-1 text, the wireless provider must send a forwarding notification alerting the bouncer to the dispatcher who is evaluating the text-to-9-1-1 in their area. The FCC seeks comment on whether such automatic notifications should be blocked by its rules.

In some circumstances, PSAPs are set up to send text messages, if the caller or call is made in error, is there a risk that FCC rules will block such messages? The FCC is also seeking comments to assess whether other types of important health and safety messages, such as texts about public safety, public health, or the National Suicide Prevention Lifeline, are at risk of being erroneously intercepted.

Pain Education

This NPRM follows an FCC consumer advisory issued in July by the FCC’s Robocall Response Team that warned consumers of the emerging threat of robocalls and included taking steps to protect themselves from text message scams, including not responding to suspicious texts, even if the message requests that you text “STOP” to stop or to stop. clicking the link. The report seeks comment on additional ways the FCC can reach consumers to expose them to text scams and whether consumer reports of text scams can help the FCC take enforcement actions against bad actors. Other federal agencies are also warning consumers, with the Federal Trade Commission and the Internal Revenue Service monitoring consumers for texting scams about unemployment, stimulus funds and the covid-19 vaccine.

The Costs and Benefits of Blocking Illegal Text Messages

The FCC estimates that blocking illegal text messages will result in a benefit of at least $6.3 billion. This figure takes the trouble of five hundred spam texts and 86 billion spam texts a year, totaling $4.3 billion. Losses from fraud for an additional $2 billion. These figures do not include the nonquantifiable benefits of reducing delays in responding to text 9-1-1 spam and reducing network congestion. The Commission tentatively concludes that any costs to providers associated with text blocking outweigh the benefits received.

conclusion

With far-reaching effects on wireless service providers, OTT news providers, public health agencies, businesses that rely on text messaging and consumers, the Commission’s final action on the proposals outlined in the NPRM is likely to be months away. Interested parties should review the NPRM in full, note the due dates for comments and responses, and contact Pillsbury Communications for more information or if you would like to participate in this important proceeding.

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