FCC Proposed Rules Will Harm Legitimate Text Messages, Say Commenters
The rules would ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer.
Teralyn Whipple
WASHINGTON, June 6, 2023 – Commenters claim that the Federal Communications Commission’s proposed rules that would require mobile wireless providers to ban marketers from contacting a consumer multiple times based on one consent will harm legitimate communications.
The new rules will set additional protections that would require the terminating provider to block texts after notification from the FCC that the text is illegal, to extend the National Do-Not-Call Registry’s protections to text messages, and to ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer based on one consent. Comments on the proposal were due in May and reply comments on June 6.
“Robocall campaigns often rely on flimsy claims of consent where a consumer interested in job listings, a potential reward, or a mortgage quote, unknowingly and unwillingly ‘consents’ to telemarketing calls from dozens – or hundreds or thousands – of unaffiliated entities about anything and everything,” read the comments from USTelecom trade association.
Wireless trade association CTIA cited that Medicaid text messages that alert customers to critical health updates may be blocked by the ruling despite the FCC’s acknowledgement that these texts are critical. Many providers are unbending in enforcing robotext policies that mandate agencies must “satisfactorily demonstrate they receive prior express consent from enrollees to contact them.”
CTIA’s comments claimed that the proposed rules would “do little to enhance existing industry efforts to reduce text spam or protect consumers.”
Competitive networks trade association INCOMPAS claimed that the current framework is not well suited to allow the industry to universally resolve text messaging issues. “In the absence of standardized, competitively neutral rules, the current dynamics create perverse incentives that allow gamesmanship and arbitrage schemes as well as fraudulent behaviors to thrive.”
USTelecom commended the FCC for taking these steps and suggested that it expressly ban the practice of obtaining single consumer consent as grounds for delivering calls to multiple receivers by issuing a decisive declaration rather than a rule change. Providing clear guidance will deprive aggressive telemarketers of the plausible deniability they rely on to put calls through, it said.
The new language proposed in the notice is unnecessary and runs the risk of introducing new ambiguity by not eliminating perceived loopholes through a decisive declaration, read its comments.
The Retail Industry Leaders Association claimed that the notice would “primarily and negatively impact those who send legitimate text message solicitations, not scam senders and bad actors.” The well-intentioned measures will sweep in legitimate text communications, it claimed, by reducing consumer control and making assumptions on their behalf.
“Consumers use the DNC list to prevent unwanted telephone call solicitations. They do not expect that the DNC List will prevent normal and desired communications from legitimate businesses like RILA members,” it wrote.
In the event the FCC moves forward with the proposed rules, the RILA urged that the rules include “clear carve-outs or safe harbors” for legitimate solicitations.
This comes as the FCC considers additional proposed rules that will strengthen consumer consent for robocalls and robotexts by allowing consumers to decide which robocalls and texts they wish to receive.
