The FCC is expected to consider two items at its December 12, 2018, open meeting that will be of significant interest to TCPAland. Ok, don’t get too excited. The decision on the ACA public notice is not on the agenda, but we’re getting closer.
The first item, a report, and order that would establish a single, comprehensive reassigned numbers database (draft available here), is a first step by the Commission in addressing the TCPA conundrum of reassigned numbers. While implementation of a reassigned number database will be fabulous news in TCPAland, we will still have to have a little more patience for the safe harbor silver bullet we’ve all been waiting for since the ACA court threw out the Commission’s one-call so-called safe harbor, which was anything but. The draft reassigned number item makes clear that while relief is coming, it is not here yet, and will have to await decision on the ACA public notice, noting that the item will not be addressing “how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers.” Still, relief may be coming, as the draft indicates that it anticipates “that use of the database will be a consideration” when it addresses the reassigned numbers issues raised in the ACA decision. Let’s keep our fingers crossed on that score.
Also on the tentative agenda for the December meeting is a declaratory ruling that would classify SMS and MMS wireless messaging services as “information services,” with the aim of making it easier from a regulatory standpoint for wireless providers to deploy robust spam-blocking services. If adopted, the draft declaratory ruling (available here), would reject the petitions of Twilio (described by the item as “a provider of mass-texting and spoofing services”) and public interest groups, urging the Commission instead to find that, like wireless voice services, texting services are telecommunications services and commercial mobile radio services subject to common carrier regulation under Title II of the Communications Act.
Petitioners argued that, among other things, regulating wireless messaging services as a Title II common carrier offering was necessary to prohibit wireless providers unfettered discretion to block text messages. Under non-discrimination and other requirements applicable to common carriers, the Commission has generally found that call blocking by providers is an unlawful practice permitted in only specific, well-defined circumstances.
The draft declaratory ruling completely rejects the argument that SMS and MMS wireless messaging services are common carrier offerings, instead of finding that the services should be categorized as information services, and regardless are not common carrier commercial mobile radio services, like wireless voice services. In making that determination, the draft, among other things, observes that like email services, which are unregulated information services, wireless messaging services provide store and forward capabilities, and also include many integrated enhancements that take them out of the realm of pure telecom offerings.
The argument that regulating wireless messaging under Title II was necessary to prevent indiscriminant message blocking was also painfully out of step with the thinking of the current Commission, which is on a text spam blocking-at-any- cost mission. In that regard, the draft explicitly noted that “classifying SMS and MMS as Title II telecommunications services would harm those efforts and open the floodgates to unwanted messages—drowning consumers in spam at precisely the moment when their tolerance for such messages is at an all-time low.”
But wait you say, “how can the Commission reclassify wireless messaging as an information service, but still treat a text message as a call for purposes of the TCPA’s prohibitions on auto-dialed calls to wireless numbers absent consent?” Obviously, if reclassifying wireless messaging as an information service outside the scope of Title II, would mean that messages were no longer calls under the TCPA, that would pretty much defeat the point of the whole exercise. Sure, wireless carriers could continue to deploy robust blocking solutions, but violations would no longer be subject to the TCPA. (Not that we in TCPAland would mind such an outcome, and perhaps this lays the groundwork for a new defense angle if the declaratory ruling is adopted?).
Well, beyond the old adage that, “consistency is the hobgoblin of little minds,” this argument was actually considered and rejected by the draft item, which found no such inconsistency between treating wireless messaging as an information service, and the Commission’s finding that texts are calls for TCPA purposes. Rather the draft found that the text/call decision was merely clarifying the meaning of the undefined term “call” in the TCPA in order to address the obligations that apply to telemarketers and other callers, and was in no manner addressing the regulatory classification of texting services under the Communications Act.
The December open meeting at the Commission is always a festive one, and perhaps this year we’ll be getting a little early holiday cheer in TCPAland, with some indications of good things to come. We will, of course, be watching closely, and will keep you posted.