Public Interest, Consumer Groups Oppose TCPA Exemption for Texts

Consumer and public interest groups said the FCC should deny a petition by the P2P Alliance asking to clarify peer-to-peer text messages to cellphones aren't subject to Telephone Consumer Protection Act restrictions (see 1805040028). It's late in the game. Industry and agency officials said Chairman Ajit Pai supports acting on the P2P petition, likely with the support of the other Republicans. Commissioners Jessica Rosenworcel and Geoffrey Starks haven't staked out a position.

It would be a “crime, totally outrageous for Chairman Pai to issue an exemption for a major technology without anything in the record” justifying an exemption, said National Consumer Law Center Senior Attorney Margot Saunders, who filed the letter on behalf of the other groups. “It would completely undermine all of the statements that Chairman Pai has made repeatedly about wanting to address unwanted robocalls and robotexts,” Saunders told us. Members of the alliance met with Pai in May (see 1905150023). A year earlier, the group filed its petition seeking clarity. An FCC official noted the petition is one of about 60 before the commission seeking TCPA clarity.

Public Knowledge Senior Counsel John Bergmayer was initially sympathetic to groups that want to send texts without fear of lawsuits under the TCPA. “All these wonderful groups use texts to communicate and you don’t want to cut them off,” he said. But there’s nothing in the rules that say you can’t send texts with consent, he said: “If getting consent is too hard, then maybe you shouldn’t send texts, but I don’t think that is too high of a burden.”

In 2015, Commissioner Mike O’Rielly and then-Commissioner Pai opposed an order implementing TCPA rules, which they said would encourage rather than cut down on TCPA lawsuits. O’Rielly continues to seek changes to the rules (see 1905160088). He mentioning the P2P arguments in a May speech to America's Communications Association.

Rosenworcel partially dissented to the 2015 ruling, saying it allows big banks, healthcare providers and pharmaceutical companies to make robocalls without express permission from customers (see 1506180046). The alliance and the FCC didn't comment.

“Granting the petition would … mark a major setback in the Commission’s efforts to address unwanted and illegal robocalls and robotexts,” said the letter from the groups, posted Friday in docket 02-278. “These messages are already impacting tens of millions of consumers and prompting consumer complaints. Consumers are complaining loudly. If the Commission were to grant the petition, telemarketers and spammers would immediately gravitate to P2P systems as a way to evade the TCPA’s restrictions.”

The filing maintains a decision would be “premature.” The record is “completely devoid of information about the technical capabilities of the platforms that enable P2P’s automated texts,” the groups said: “Neither the petition requesting the exemption nor the information about the platform available publicly provides sufficient support for this exemption, or gives commenters, representatives of consumers, or the Commission, sufficient information.” Signers are the National Consumer Law Center, Consumer Reports, Consumer Federation of America, Consumer Action, National Association of Consumer Advocates, Public Knowledge and U.S. PIRG.

Saunders told us she didn’t file comments last year because she was busy on other issues. “There are dozens of pending petitions and there’s nothing that says that any one of them will necessarily be addressed at any time,” she said.

When the FCC took comments last year, the Voice on the Net Coalition and other groups supported providing clarity. “VON agrees that P2P messaging is not the type of communication technology that Congress intended to be subject to the TCPA’s restrictions or that the FCC has sought to proscribe in its implementation of the TCPA,” VON said.

The Republican National Committee supported the petition. “Tread lightly when it comes to regulating political speech, which is what the wireless-number restriction of the TCPA does,” the RNC said. It said the alliance raises a unique concern: “P2P platforms are not autodialers and do not make calls using autodialing capabilities.”