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How Wireless Carriers Defend Consumers From Spam Texts
By Phyllis Sumner and Anush Emelianova, King & Spalding LLP
Law360, New York (April 27, 2017, 3:37 PM EDT) -- President Donald Trump's
new Federal Communications Commission chairman, Ajit Pai, already has
expanded the power of internet providers to monitor consumers' internet history
by jettisoning Obama-era privacy rules that prevented internet providers from
collecting and selling customers’ browsing history without their consent. It remains
to be seen how he treats filtering SMS texting.
Under Democratic leadership, the Federal Communications Commission had been
weighing the benefits of protecting SMS text messaging under Title II of the
Communications Act of 1934, often referred to as the open internet rules, versus
continuing to protect consumers from a potential bombardment of unwanted
texts. Now, under Republican leadership, the initiative has stalled, and Chairman
Pai has said that the original open internet rules went too far. If the FCC were to
reclassify SMS text messaging as a common carrier service under Title II, it would
impose net neutrality rules, which would prevent internet providers from blocking
or throttling text message traffic. In the short term, this could mean a sharp
increase in A2P (from an application to a person) SMS messages. In the long term,
it could result in innovation in the text messaging space — and an increase in text
message spam for consumers.
Anush Emelianova
Twilio, a company that provides mass texting services to businesses, has been
fighting for the FCC to clarify that texts should be regulated under the open
Phyllis Sumner
internet rules, which would allow consumers and businesses to send and receive
any text message without the risk that it might be filtered without notice by the
carrier. Wireless industry players, who currently keep cellphones relatively spam-free by identifying and
blocking suspicious text messages, have responded that the change would hurt consumers. Ultimately,
Chairman Pai is likely to protect consumers by siding with wireless carriers.
According to Twilio, wireless carriers are utilizing their market power to increase the price of text
messaging. Twilio points to a recent study it commissioned indicating that users overwhelmingly prefer
text messages when communicating with brands. Twilio says it is in the business of wireless innovation:
it provides platform development solutions to organizations who want to communicate with customers
in new ways. Currently, any A2P text message — any message that is not sent by a human using a
mobile handset — must be sent using a 5-digit common short code. In contrast, P2P (from a person to a
person) messaging is conducted over a 10-digit telephone number. While businesses and nonprofits can
own a 10-digit number, fewer messages can be sent per second, and short codes must be used for
automated SMS campaigns and verifications. The Cellular Telecommunications Industry
Association (CTIA), a nonprofit association of wireless carriers, allows businesses and nonprofits to lease
a short code for a fee, and wireless carriers can impose additional filtering on texts as well. The CTIA also
publishes best practices to prevent consumer harm through abuse of the short code program. Phone
calls, in contrast, are not controlled in the same way: both businesses and consumers are assigned 10digit telephone numbers and wireless carriers are not permitted to block calls without consumer
consent.
Since Twilio first asked the FCC to unambiguously declare text messaging services as Title II services in
August 2015, wireless carriers such as Verizon and AT&T have opposed the change on the grounds of
consumer protection. According to AT&T, it blocks 750 million text messages daily and has reduced SMS
spam 99 percent from its peak levels in 2012. The CTIA accused Twilio of "serving as the conduit for
spam" and warned of subjecting Americans' smartphones "to the same degree of frivolous and
exploitive content that many Americans’ email inboxes are subject to today." Twilio responded that
customers have consented to these messages, yet wireless carriers block or filter about 100 million
"lawful, consented-to text messages" to consumers per year. As a result of carrier blocking, Twilio says,
at least one crime victim has failed to receive a prisoner release notification to her phone. An artist who
sent thank you notes and other messages to his fans, who had initiated the conversation by sending the
artist a text first, found that some carriers blocked all of his messages. Some Twilio customers have
complained of blocked “critical notifications to doctors and other essential medical personnel after a
patient initiates the dialogue” and “dispatch notifications to service technicians.” Citing examples like
these, Twilio accuses carriers of obstructing innovation and interfering with consumer choice by
unpredictably blocking messages.
Startups like Remind, an automated text messaging service used by schools to communicate with
students and parents, and Nomorobo, a mobile app that charges users $2/month to block unwanted
calls, have joined Twilio’s push to put text messaging under net neutrality rules. They argue that wireless
carriers are illegally blocking messages that users have solicited. If they are successful, wireless carriers
will no longer be able to block text messages as spam. Users will be able to use services like Remind
reliably, but may need to turn to apps like Nomorobo to control spam. Twilio argues that customers are
best suited to implement and customize their own spam blocking measures. Earlier this year, the CTIA
noted that text messaging remains a trusted communications medium precisely because wireless service
providers "have actively managed their platforms to protect consumers from spam or nuisance
messages." Messaging is considered the most favored form of communications among consumers
today, but it is unclear whether that will change if the wireless ecosystem changes. Presumably,
consumers will install their own spam-blocking apps, or rely on phone manufacturers to provide an
operating-system-level filter, to which users can opt-in.
The FCC's recent move to decrease phone call spam may foreshadow its approach to text message
spam. The new chairman of the FCC under President Trump, Ajit Pai, has indicated that he generally is
opposed to the net neutrality rules of Title II, but still favors "a free and open internet." Chairman Pai
wrote an opinion piece recently in which he referred to unsolicited robocalls to consumers as "the
scourge of civilization." To solve this problem, the FCC voted 3-0 on March 23, 2017, to approve a
proposal to give phone companies greater leeway to block spoofed robocalls. The proposed rules would
allow carriers to block spoofed caller ID numbers associated with phone lines that do not exist or do not
actually dial out, without running afoul of FCC rules requiring carriers to complete all calls. When
requesting comment on the proposal to allow wireless carriers to control robocalls, the FCC indicated
that "the criteria used to identify such [illegal spam] calls must be objective, minimally intrusive on the
legitimate privacy interests of the calling party, and must indicate with a reasonably high degree of
certainty that a particular call is illegal." This interest in objective criteria and transparency may
represent a middle ground between allowing wireless carriers to filter messages without accountability
and forcing them to send all text messages without filtering. Nonetheless, the FCC's approach to the
robocall issue demonstrates a willingness to allow wireless carriers to act as gatekeepers for spam
communications.
This is a challenging issue for Chairman Pai, who describes himself as a proponent of "light touch
regulation" and the results of the free market. Pai has criticized previous FCC privacy regulations
because they were "designed to benefit one group of favored companies over another group of
disfavored companies." While Twilio and other companies might argue they cannot truly compete for
consumers' message inboxes because the "favored" wireless carriers have ultimate control, so far, Pai's
FCC seems content to allow wireless carriers to control, filter, and protect SMS texting.
Phyllis B. Sumner is a partner and Anush Emelianova is an associate in King & Spalding LLP's business
litigation practice group in Atlanta. Sumner is the firm's chief privacy officer and leads the firm's data,
privacy and security practice.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
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