FCC Under Pressure to Make Changes to Draft Robotext Rules

Industry is calling on the FCC to revise a robocall item, set for a commissioner vote Thursday, which codifies some robocall and robotexting rules while asking about applying protections in the Telephone Consumer Protection Act to communications from wireless carriers to their own subscribers (see 2401250068). Industry officials told us they’re not certain the FCC will make the changes they seek, though they expect tweaks.

“The impact of our recent meetings remains uncertain, but we feel we made a persuasive case for some revisions,” said Brownstein Hyatt’s Michael Pryor, who represents a group of mostly financial trade associations seeking revisions to parts of the rules. A second lawyer in the proceeding said, given the FCC’s strong support of curbs on robocalls, changes seem unlikely.

The draft order “will harm consumers because callers will have limited ability to ensure that consumers do not inadvertently opt out of critical messages,” said a filing by the trade groups in docket 02-278. The draft revocation order “encourages and facilitates frivolous or manufactured litigation by placing the burden of proof on companies to prove that a non-standard revocation is not reasonable,” the groups said. That would be a new approach, they said: “In previous orders, the Commission has not sought to allocate the burden of proving the effectiveness of a revocation. It has simply stated that a totality of the circumstances be used.”

The groups also asked the FCC to rethink a proposed rule requiring businesses to send a confirmation text within five minutes of receiving a revocation request. “There are many instances when a company cannot immediately process a revocation request and will not be able to comply with the five-minute rule,” the groups said. ACA International, the American Bankers Association, America’s Credit Unions, the American Financial Services Association, Edison Electric Institute, the Mortgage Bankers Association, the American Association of Healthcare Administration Management and the National Council of Higher Education Resources signed the filing.

The groups believe they presented “a strong argument” for revising the “impracticable proposal” requiring confirmation texts within five minutes of receipt of a revocation request no matter how that request was sent, Pryor said. “Overall, we are concerned that the draft order will harm consumers by preventing them from receiving critical messages like fraud alerts and multifactor authentication texts,” he said.

CTIA also raised concerns (see 2402080041). The group last week highlighted a recent survey by Morning Consult that found consumers “overwhelmingly support” receiving texts from their providers. The survey found 85% find reminders about potential international roaming charges helpful, 75% support warnings about suspected fraud, 70% about potential loss of service and 70% on missed payments and potential late fees. “Given the vibrant competition in the wireless market, providers take care to balance the need to send relevant communications to their subscribers with the need to ensure consumers are receiving the messages they want and not those they don’t,” CTIA said.

Consumer and public interest groups asked the FCC to amend the Further NPRM to include a question on whether FCC rules should “simply require an automated opt-out for all calls that include an artificial or prerecorded voice.”

Margot Saunders, senior counsel at the National Consumer Law Center, who wrote the filing, said she’s not sure whether the FCC will make the change. Other groups supporting the filing include Consumer Action, the Consumer Federation of America, the Electronic Privacy Information Center, the National Association of Consumer Advocates, National Association of Consumer Utility Advocates, the National Consumers League and Public Knowledge.

In the latest filing, made Monday, the National Federation of Independent Business asked the FCC to withdraw the draft prior to the meeting. The federation questioned whether the FCC had the legal standing to approve the order.

Pryor also filed a notice on meetings last week with commissioner legal advisers and Consumer and Governmental Affairs Bureau staff. "We conveyed concerns that the Draft Revocation Order would result in harm to consumers who may inadvertently opt-out of receiving informational messages, such as fraud alerts, data breach notifications, and multifactor authentication texts,” that filing said.