FCC’s robotext crackdown could block legal messages, critics say [Updated]

Update on December 12: The FCC today approved the robotext proposal described in this article. Original story from November 21, 2018 is as follows:

The Federal Communications Commission says it is giving cellular carriers added authority to block text messages, saying the action is needed to protect consumers from spam or robotexts. But critics of the plan note that carriers are already allowed to block robotexts and worry that the change will make it easy for carriers to censor political texts or block certain kinds of messages in order to extract more revenue from senders.

FCC Chairman Ajit Pai's announcement acknowledges that carriers are already allowed to block illegal robotexts. Pai did not promise new consumer-friendly blocking services; instead, he said his plan "allow[s] carriers to continue using robotext-blocking and anti-spoofing measures to protect consumers from unwanted text messages" (emphasis ours).

Despite that, Pai is proposing to classify text messaging as an information service, rather than a telecommunications service. That's the same legal classification that Pai gave to home and mobile broadband services as part of a December 2017 vote to deregulate the industry and eliminate net neutrality rules. The FCC has not previously ruled on whether text messaging is an information service or a telecommunications service.

An FCC vote on Pai's plan is scheduled for December 12.

Verizon blocked NARAL texts in 2007

In 2007, consumer advocacy group Public Knowledge asked the FCC to classify text messaging as a telecommunications service after Verizon temporarily blocked messages from NARAL Pro-Choice America. (Verizon stopped blocking NARAL messages after criticism, admitting that "the decision to not allow text messaging on an important, though sensitive, public policy issue was incorrect.")

The FCC received a similar request in 2015 from Twilio, which makes software that application developers can use to automatically send text messages. Twilio said that carriers were routing some of its customers' messages to a third-party aggregator that demanded money from Twilio, with carriers presumably getting a cut of such payments.

Public Knowledge yesterday called Pai's plan "a great big gift basket to corporate special interests at the expense of American consumers."

"Chairman Pai proposes to grant the wireless industry's request to classify text messages as Title I 'information services,' stripping away vital consumer protections," Public Knowledge Senior VP Harold Feld wrote. "Worse, Chairman Pai's action would give carriers unlimited freedom to censor any speech they consider 'controversial,' as Verizon did in 2007 when it blocked NARAL and prompted the Public Knowledge 2007 petition."

Classifying text messages as a Title II telecommunications service would have made it illegal for carriers to block messages like NARAL's, which consisted of "mass text message alerts to its members on legislation impacting reproductive rights," Feld wrote.

Pai's announcement does not explain why the information service classification is needed to let carriers "continue" blocking robotexts that violate US law. The announcement confirms that carriers are already allowed to do this. "Robocalls and robotexts are limited by the Telephone Consumer Protection Act," Pai's announcement said. "The FCC has repeatedly established that text messages are considered a type of call under the law and thus must abide by all restrictions on robocalls to mobile phones."

The Telephone Consumer Protection Act does apply to political robocalls and texts, the FCC says on its website. That means such messages cannot be sent "to cell phones, pagers, or other mobile devices without the called party's prior express consent."

Pai’s Title II argument is false, Feld says

Pai argued in a blog post that changing text messaging from its current un-classified status to a Title II telecommunication service "would dramatically curb the ability of wireless providers to use robotext-blocking, anti-spoofing, and other anti-spam features." Rejecting Title II and settling on the information service classification for text messaging would "remove regulatory uncertainty, and empower providers to continue finding innovative ways to protect consumers from unwanted text messages," Pai wrote.

But it's not true that a Title II classification would prevent robotext filtering, according to Feld. Notably, mobile voice is regulated as a Title II service, and that isn't preventing carriers from implementing anti-robocall features. In fact, Pai has demanded that carriers implement more aggressive robocall-blocking technologies in their Title II mobile voice services.

Feld wrote:

"Chairman Pai supports this outrageous action by claiming the Title II 'telecommunications service' classification undermines spam filtering. As the FCC made clear in 2016 (over then-Commissioner Pai's dissent), text messages and robocalls are both 'calls' under the anti-robocall statute, and this Title II designation does not prevent filtering or other technological means to block unwanted robocalls or spam texts. Indeed, Chairman Pai undermines his own argument by pointing out that email, which has always been an information service, has a 50 percent spam rate whereas text messaging, which the FCC treats as a 'phone call,' has a 2.5 percent spam rate."

FCC Commissioner Jessica Rosenworcel, the commission's only Democrat, objected to the proposal and Pai's justification for it.

"The claim that the FCC needs to classify text messages to protect consumers from unwanted texts is bogus doublespeak," Rosenworcel said in a statement to Ars and other news organizations. "It's brought to you by the same agency that gave broadband providers the right to censor your online activity by rolling back net neutrality. Now, the agency wants consumers to believe that giving cell phone companies the ability to block your text messages is a good thing. This makes no sense."

Pai's information service proposal was accompanied by another measure designed to reduce robocalls. Pai is proposing a "reassigned number database... [that] would help legitimate callers know whether telephone numbers have been reassigned to somebody else before calling those numbers," he wrote.