On August 3, 2017, the Spoofing Prevention Act of 2017 (S. 134) was passed by unanimous consent by the Senate and transmitted to the House of Representatives. The bill, sponsored by Sen. Bill Nelson (D-FL), proposes modifications to numerous provisions of the TCPA. First, it would expand the scope of the anti-spoofing section to include calls originated by a person outside the U.S. if the recipient of the call is within the U.S. Second, it would define “text message” to mean “(i) …a message consisting of text, images, sounds, or other information that is transmitted from or received by a device that is identified as the transmitting or receiving device by means of a 10-digit telephone number; [or] (ii) … a short message service (commonly referred to as ‘SMS’) message, an enhanced message service (commonly referred to as ‘EMS’) message, and a multimedia message service (commonly referred to as ‘MMS’) message.” Third, the bill would require the FCC, in coordination with the Federal Trade Commission, to develop consumer education materials to help consumers identify scams and other fraudulent activity typically associated with spoofing and raise awareness of technologies available to protect consumers from unlawful spoofing. Finally, the bill would require the Comptroller General to issue a report within 18 months of passage on activities by the FCC and FTC related to spoofing.
The proposal to codify the definition of a “text message” could have a significant impact on companies that transmit marketing messages via automatic text to consumers. Although the FCC has long interpreted the TCPA to cover text messages, it has not formally adopted a definition as to what constitutes a “text message,” and historically has focused on short message service (SMS) transmissions. Thus, adding “text message” to the defined terms in the Act may expand the scope of text communications that are subject to the TCPA.
A companion bill in the House of Representatives was passed in January (H.R. 423). However, the House version had some inconsistencies with the Senate legislation. Thus, there are two procedural options for advancing the bill: (1) the House can vote on the Senate version, and if passed, the bill will be sent to the President for his signature; or (2) the House and Senate bills can be “reconciled,” at which point both chambers will need to vote on the legislation a second time.