Final Robotexting Order Saw Industry-Friendly Changes Over Draft

CTIA appeared to get some of what it sought on a robotexting order that FCC commissioners approved last week, which was posted in Tuesday’s Daily Digest. Opponents of tough new rules closing the lead generator loophole appeared to strike out. That decision led Commissioner Nathan Simington to a partial dissent. The Small Business Administration’s Office of Advocacy had asked the FCC to seek further comment (see 2312040028), an approach Simington endorsed (see 2312130019).

The final order replaces language requiring carriers to act when they are notified of “suspected” illegal texts. Instead, carriers now must act when notified of illegal texts. “We disagree with CTIA’s assertion that requiring a provider to investigate prior to blocking would constitute ‘inappropriately delegating the Commission’s investigatory responsibilities and determinations of lawfulness to wireless providers,’” said a footnote responding to a Dec. 4 CTIA letter raising concerns.

“However, we recognize that terminating providers ‘are not the ‘choke point’ for the suspect illegal traffic,’ that requiring terminating providers to investigate may in some cases impose a significant burden, and that it may lead to differing approaches for different providers,” the order continues: “We therefore do not require a provider to investigate before initiating blocking. We do, however, require providers to respond to the Enforcement Bureau’s notice unless the Enforcement Bureau expressly exempts providers from that requirement in a particular situation. That could be as simple as an acknowledgment of receipt and indication that the provider will initiate blocking.”

The FCC also tweaked timing of the requirements, which the wireless industry requested.

The Competitive Carriers Association had warned that a proposal requiring terminating providers to block texts from a particular number within 30 days of Federal Register publication doesn’t provide adequate time for carriers (see 2312060029). Instead, the order becomes effective 180 days after publication. But the FCC rejected CTIA arguments that the rule requires Paperwork Reduction Act approval. The rule “falls under the exception for collections undertaken ‘during the conduct of … an administrative action or investigation involving an agency against specific individuals or entities,” the order said.

Marketers get little ground from the order. The FCC addresses objections by lead-generation industry commenters that comparison shopping saves consumers money. “There is no evidence that unequivocally requiring one-to-one consent would reduce this benefit to consumers,” the order says. The Insurance Marketing Coalition “contends that each year millions of satisfied consumers provide prior express consent to comparison shopping sites and are satisfied with the calls they receive and thus do not file complaints with regulators,” the order continues: “This, of course, does not rebut arguments in the record that consent abuse by comparison shopping websites harms consumers.”

The FCC also addresses concerns the SBA raised. “We are particularly cognizant” of the SBA’s “request that the Commission obtain further comment and conduct further economic analysis on the impact of this proposal on small entities,” the order says: “We observe that no party objecting to our proposal provided specific evidence on the potential economic impact of our proposal and that our own analysis suggests that the harm of unwanted and illegal calls is at least $13.5 billion annually. Additionally, the evidence in the record indicates that lead generators and lead aggregators are a significant contributor to this problem.”

The final rule “makes it unequivocally clear that prior express written consent … must be to one seller at a time, but does not prevent small businesses from buying and selling leads or prevent small businesses from contact with consumers,” the order said.

CTIA had concerns despite the changes. “While we support the FCC’s engagement in helping combat misuse of both voice and text messaging services, unfortunately, today’s action risks confusion for consumers, significant implementation challenges, and a diversion of resources from more effective tools already in use and industry-government collaboration to crack down on bad actors,” a CTIA statement last week said.