Tech & Telecom Law News

Spam Texts Targeted by FCC as Advocates See Free Speech Trampled

Dec. 7, 2018, 9:30 AM

AT&T Inc., Verizon Communications Inc., and other wireless carriers can block text messages from reaching consumers, a power that aims to combat spam but has been used to intercept messages about social policy issues such as abortion rights.

The Federal Communications Commission is deciding whether to continue allowing the carriers to block texts with a vote expected Dec. 12.

The FCC sees its plan as an important tool in the fight against spam texts. Critics argue the FCC is trampling on free speech because carriers have blocked legitimate messages from advocacy groups about polarizing issues such as abortion.

The texting fight echoes the broader war over the agency’s repeal of net neutrality regulations, which raises free speech concerns by allowing broadband providers to slow or block data traffic on their networks.

“There’s obviously a lot of concern going forward, certainly for organizations that are engaged in what carriers might consider to be controversial speech,” Harold Feld, senior vice president of Public Knowledge, a nonprofit technology policy group, said about the text plan.

Text message services are unclassified under communications law. The FCC is expected to vote Dec. 12 on regulating texts as an information service, which allows carriers the ability to block messages.

“If you don’t have an ability to curate the medium, your phone turns into a spam engine,” said John Lauer, CEO of Zipwhip, a texting service for businesses that backs the FCC plan.

The move also would help carriers compete with online messaging services such as WhatsApp and Facebook Messenger, the industry group CTIA, which represents AT&T and Verizon, told FCC officials, according to an agency filing.

Instead of classifying text messages as an information service, consumer advocates have pushed the commission instead to regulate them as a telecommunications service akin to traditional telephone services, which are subject to rules that ensure equal access to networks.

‘Censoring Time-Critical Speech’

The issue first gained public attention in 2007 after Verizon blocked NARAL Pro-Choice America, an abortion rights group, from sending text messages to supporters. Verizon reversed course after a public outcry.

“Based on numerous incidents in the past, we fear that permitting carriers to block messages without any oversight will result in censoring time-critical speech,” a coalition of 20 organizations, including Public Knowledge, the Communications Workers of America, and the Electronic Frontier Foundation, wrote in a Dec. 5 letter to FCC Chairman Ajit Pai. Public Knowledge in 2007 unsuccessfully petitioned the FCC to classify text message services as a telecommunications service.

Twilio, a cloud technology company that helps businesses send and receive texts and phone calls, estimated mobile carriers blocked 33 million messages for which subscribers had given persmission from the company’s platform in the fourth quarter of 2017, according to an FCC filing. Twilio in a 2015 petition asked the FCC to classify text message services as a telecommunications service. The FCC would deny the petition in its ruling Dec. 12.

Republican FCC Commissioner Michael O’Rielly told Bloomberg Law the free speech concerns are overstated. Declaring text message services an information service “doesn’t free it from any regulation, just like our action in net neutrality,” O’Rielly said.

Text Vs. Email Spam

The FCC plan would ensure carriers can keep shielding consumers from receiving unwanted robotexts and spam text messages, Pai said.

“This decision would keep the floodgates to a torrent of spam texts closed, remove regulatory uncertainty, and empower providers to continue finding innovative ways to protect consumers from unwanted text messages,” Pai wrote in a recent blog post.

Classifying text messages as a telecommunications service would “dramatically curb the ability of wireless providers to use robotext-blocking, anti-spoofing, and other anti-spam features,” Pai said.

Consumers are receiving fewer spam text messages than spam emails because wireless carriers can filter for spam, FCC supporters say. About 2.8 percent of all texts are spam, and 53 percent of emails are spam, according to estimates cited by CTIA.

“If mobile messaging were treated just like telephone calls, your messaging experience would be significantly different because the wireless industry’s hands would be tied trying to prevent text spam from reaching you,” Scott Bergmann, CTIA’s senior vice president of regulatory affairs, wrote in a blog post. CTIA oversees the Short Code Registry, a database of five- and six-digit codes commonly used by businesses, organizations and political groups for text message campaigns.

To contact the reporter on this story: Jon Reid at jreid@bloomberglaw.com

To contact the editor responsible for this story: Jessica Coomes at jcoomes@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.