Need for Additional Robotext Rules Disputed in Comments to FCC

The wireless industry disputed the need for additional requirements to block texts, including extending requirements to originating providers and requiring use of “reasonable analytics” to block texts likely to be illegal, in response to a December Further NPRM (see 2312130019). But other groups said the FCC should consider additional rules and can’t rely on the wireless industry's voluntary efforts. Comments were posted this week in docket 21-402.

Additional steps the FCC proposed are unnecessary, said CTIA, noting that carriers block tens of billions of unwanted texts yearly. “Should the Commission nevertheless pursue action, CTIA urges … a more nuanced approach to blocking that is tailored to the messaging ecosystem by focusing on the senders of illegal text messages and, if necessary, an ecosystem-wide approach.”

Moreover, the FCC should refrain from imposing requirements about how the industry authenticates texts, CTIA said. “Given the lack of evidence to support moving forward on text authentication obligations, the Commission can continue to monitor the development of these solutions without keeping this issue open through further rulemakings or reporting obligations,” the group said: The record demonstrates that wireless carriers “and the broader messaging ecosystem have been on the front lines protecting consumers from spam and scam text messages for years, which has maintained texting as a popular and trusted communications platform for consumers.”

Verizon noted, “Effective blocking requirements for text messages must reflect the specific challenges of the text message ecosystem” and shouldn’t just replicate voice rules. A mandate for blocking unwanted texts based on reasonable analytics “misses the point,” the carrier said. “Such blocking is already ubiquitous.” The operator and other companies “have invested in extensive and cutting-edge analytics-based blocking to protect customers from unwanted and illegal texts, and already block messages in a competitively neutral and nondiscriminatory manner and following industry best practices,” Verizon said.

Consumer and public interest groups countered the wireless industry arguments, calling on the FCC to do more to squelch robotexts. “Much more needs to be done to stop scam texts,” they said. The National Consumer Law Consumer Action, the Consumer Federation of America, the Electronic Privacy Information Center, the National Association of Consumer Advocates, the National Consumers League and U.S. PIRG signed.

“Although some commenters may claim that the texting industry has largely resolved the problem of scam texts,” in 2023 there were 230,407 reports of text scams filed at the FTC, leading to $372 million in losses, the groups said. While total reports were down, the amount of money reported lost increased 12.7% from 2022, they said. The groups proposed a requirement that providers block scam texts within 48 hours of notice from the commission and “heavy fines” should carriers “transmit scam texts for more than a few days.” Texting is a profitable business, the groups said: “To incentivize providers to stop transmitting scam text messages, the Commission must make it more expensive for them to transmit illegal texts compared to the revenue they receive.”

Similarly, the American Bankers Association, ACA International, the Bank Policy Institute and other financial groups supported additional rules on robotexts, including requirements to block texts upon notice from the FCC and authentication standards. “Texts that impersonate legitimate businesses cause tremendous harm to consumers and undermine those businesses’ ability to communicate with their customers,” the financial groups said.

Impose a requirement that providers “use content-neutral reasonable analytics as the basis for blocking text messages,” said Responsible Enterprises Against Consumer Harassment (REACH), which represents direct-to-consumer marketers and other companies that rely on texts. The FCC should “clearly articulate that blocking legal, consented text messages is a violation of law” and “clarify that providers can be held vicariously liable for illegal blocking,” REACH said.

Incompas also suggested additional rules may be needed. The group “has repeatedly expressed concerns regarding the competitive implications of a self-governed messaging framework in the mobile wireless industry that has taken root without any regulatory oversight,” Incompas said: “Our members consistently struggle to manage aspects of wireless carriers’ broadly applied methods of blocking which deprecate and degrade competitive offerings relative to comparable wireless offerings in the marketplace.”