Commission Strengthens International and Domestic Robocall Enforcement Partnerships

The Federal Communications Commission (FCC) entered into three new agreements to enhance its robocalling investigation and enforcement capabilities. The FCC signed a Memorandum of Understanding (MOU) with the Georgia Office of the Attorney General (Georgia AG). It also agreed to a new framework for cooperation with the United Kingdom Office of Communications (Ofcom). And finally, the FCC entered a formal partnership with the Information Commissioner’s Office of the United Kingdom (ICO). All three actions focus on promoting cooperation among the entities in investigating and stopping illegal robocall traffic.

Under the Georgia MOU, the FCC and Georgia AG agree to cooperate in the investigation of illegal robocalling, including spoofing and scam campaigns. Cooperation with state law enforcement and consumer protection agencies typically includes sharing information and records about targets of investigations as well as other resources that help streamline and prevent duplicative efforts. As with previous state MOUs, the Georgia MOU will facilitate relationship building with other federal and state agencies (like the Department of Justice or Federal Trade Commission), industry members, and blocking companies, sharing enforcement expertise and personnel, and backstopping important investigation tools like subpoenas. With the addition of Georgia, every state except Nebraska has signed a MOU with the FCC’s Enforcement Bureau. 

The FCC also agreed to a new framework with Ofcom to facilitate cooperation in combating illegal robocalls and robotexts. In particular, the two regulators agreed to share information that will assist each country in investigating and enforcing robocalling and texting laws. The new framework recognizes that robocalling and texting is an international problem that requires cross-border efforts to investigate and shut down illegal calling and texting operations. This action is the most recent agreement in a line of several similar partnerships, including with Australia, Brazil, Canada, Romania, Singapore, and the European Union.

Finally, the FCC announced a formal agreement, in the form of a MOU, with the ICO to cooperate on enforcement matters related to unlawful robocalls and robotexts, as well as efforts to protect consumers’ privacy and sensitive data. This MOU is the first of its kind. The strategic partnership will facilitate information and resource sharing that will allow both regulators to carry out their missions more efficiently and effectively. Noting that the FCC and ICO share many cross-border issues, the new partnership recognizes an increased need for international partnerships to protect consumers as they share more data and utilize vast and complex telecommunications services that expand beyond traditional borders. Under the MOU, the FCC and ICO seek to advance an international approach to combatting unlawful robocalls, including unsolicited commercial messages, telemarketing, scam calls and texts, spoofing, and unlawful automated or prerecorded voice and text messages.

Federal Trade Commission Amends Telemarketing Sales Rule to Add Recordkeeping Requirements

The Federal Trade Commission (FTC) announced a final rule making changes to the Telemarketing Sales Rule (TSR) used to enforce certain robocalling requirements. As background, the TSR was adopted in 1995 under the Telemarketing and Consumer Fraud and Abuse Prevention Act. In general, the TSR prohibits deceptive and abusive telemarketing practices, such as making misleading statements, and requires that telemarketers make certain disclosures at the outset of a call. In addition, the TSR prohibits calls to consumers on the National Do-Not-Call (DNC) Registry (in addition to FCC rules) and prohibits the use of prerecorded messages in all sales calls.

The most significant changes to the TSR are expanded recordkeeping requirements. First, the new rule extends the record retention period from 24 months to five (5) years.Second, the new rule clarifies what records demonstrating consent must be retained. Those records include:

• The name and telephone number of the person providing consent.
• A copy of the request for consent in the same manner and format in which it was presented to the person providing consent.
• The purpose for which consent is requested and given.
• A copy of the consent provided.
• The date consent was given.
• For consent related to certain billing formation under other sections of the TSR, all documentation required by the applicable section of the TSR.

Under the new rule, for consent obtained on a website, the seller or telemarketer must also retain copies of that website that “accurately reflects what a consumer submitted” when providing consent. This may include screenshots. For consent obtained verbally, the telemarketer must retain a recording of the consent requested and provided, and the recording must be sufficient to make clear the purpose for which consent was provided, though the entire call does not need to be recorded.

The new rule also expands some other recordkeeping requirements for telemarketers, including:a copy of each unique prerecorded message; call records of telemarketing campaigns; records demonstrating an established business relationship with a consumer (as applicable); records showing a consumer is a previous donor to a particular charitable organization (as applicable); records of the service providers that a telemarketer uses to deliver outbound calls; records the entity’s do-not-call registries; and records of the version of the DNC Registry used to ensure compliance with the TSR.

Finally, when it adopted the TSR, the FTC exempted most B2B calls but stated that it would reconsider the scope of the B2B exemption should those marketing activities become problematic. Now, under the new rule, the FTC has narrowed the B2B exemption such that the TSR’s prohibitions on making certain material misrepresentations or false and misleading statements will now apply to B2B calls for all goods and services. However, the recordkeeping requirements and DNC requirements will still not apply to B2B calls.

Compliance with the new rules will be required beginning 180 days after publication in the Federal Register.

Commission Sets Compliance Dates for Two New Texting Rules

As we have reported previously, the FCC has adopted a number of text message rules and clarifications for carriers and text message senders. Now, the FCC has set the compliance dates for two of its new requirements.

First, the FCC’s new requirement that all mobile wireless providers block certain messages that are highly likely to be illegal will be effective September 3, 2024. This means that mobile wireless providers must begin blocking all text messages purporting to originate from a number on a reasonable do-not-originate list on September 3, 2024. A reasonable do-not-originate list may include only: (i) numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked; (ii) numbers that are invalid; (iii) numbers that are unassigned; and (iv) numbers that are assigned but are unused. A list so limited in scope that numbers that “obviously” should be blocked but that are not included will be deemed unreasonable. The FCC does not publish, nor is there a single FCC-endorsed third-party created list.

Second, the FCC’s new rule permitting entities to send a “one-time confirmation” message when a text recipient revokes his/her consent will take effect on April 4, 2024. This means that entities that send text messages may send a single text message following the revocation of consent, confirming that the recipient does not want to receive any additional messages from that sender. The confirmation message must be sent within five minutes of the revocation, and for recipients that had consented to multiple categories of messages from the sender (i.e., marketing or informational), the confirmation message may also request clarification as to which types of messages the revocation was intended to encompass. However, absent further clarification, the sender must cease all further texts for which consent is required. Notably, the FCC’s other rules regarding consent and revocation that were adopted as part of the same Report and Order are indefinitely delayed.