Earlier this year, the Federal Communications Commission (FCC) issued a notice of proposed rulemaking targeting unlawful text messages. Despite its targeted title, if left unchanged, the text of the rule may affect text messages sent for valid business purposes. On November 9, 2022, the Consumer Relations Consortium (CRC) submitted comments to the FCC regarding the proposed rule's shortcomings.

The CRC's comments were prepared by Legal Advisory Board (LAB) members Brit Suttell of Barron and Newburger and Abigal Pressler of Ballard Spahr.

The CRC supports regulations involving illegal texts. However, to avoid blocking lawful text messages, the CRC urged the FCC to consider making the following changes to the proposed rule:

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  • Clarify that the rule applies to illegal texts, not unwanted texts. The proposed rule appears to conflate the terms “unwanted” and “illegal.” The comment explains that, for several reasons, an unwanted text is not necessarily illegal. 

  • Recognize and avoid conflict with the portions of  Regulation F wherein the Consumer Financial Protection Bureau (CFPB) provided methods for consumers to opt-out of unwanted debt collection text messages.

  • Update the proposed rule to avoid any appearance of a content-based restriction in violation of the First Amendment to the United States Constitution. 

  • Decline to regulate Over the Top (OTT) messaging because OTT uses internet-based instant messaging applications, which can be done from either a computer or mobile phone. Since a mobile network is not required for OTT messaging, the FCC would overstep by attempting to regulate these messages.

The CRC praised the FCC for requiring providers to create a single point of contact to address blocked texts and asked the FCC to pay attention to digital equity and inclusion in any rule it ultimately adopts.   

The full comment can be found here



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