In recent years text messaging has emerged as one of the most used methods of communications among American consumers, and those entities who seek to reach out to contact them. According to the Federal Communications Commission’s (FCC) Consumer Advisory Committee (CAC), in 2020, 2.2 trillion Short Message Service (SMS) and Multimedia Messaging Service (MMS) messages were exchanged in America alone. These figures do not include messages using applications such as WhatsApp and We Chat.
This dynamic growth has also raised concern about those who would use the technology to scam and trick consumers. Last October, then Acting FCC Chair Jessica Rosenworcel, out of a concern about such potential abuses, circulated to her fellow Commissioners “a proposed rulemaking that would require mobile wireless providers to block illegal text messaging, building on the agency’s ongoing work to stop illegal and unwanted robocalls”. That proposal remains pending at the FCC.
Fast forward to April of this year, when the FCC directed the CAC, whose mission is to make recommendations on topics specified by the Commission relating to consumer needs and interests, to “examine the problem of illegal and unwanted text messages….” After four months work, the CAC approved, and on August 31 the FCC released, the product of the group’s efforts – a “Report on the State of Text Messaging”.
The FCC had directed the CAC, which established a Working Group including industry, government and consumer group members, to report on, among other things, “1) the scope of the illegal and unwanted text problem; 2) how illegal and unwanted texts harm consumers and what are the best methods for consumers to avoid and/or manage these texts [and]; 3) how the Commission should consider educating consumers on how they can evade such harms….”
The Report focuses on SMS and MMS wireless messaging. Within that context, it sets up a framework for considering the forgoing and other issues. The CAC assembles and lays out historical and other information regarding, for example, consumer use and trust in text messaging, the “messaging ecosystem,” sources of unwanted text messages and the tactics used by “bad actors,” and the various laws, rules, industry and consumer practices employed or available to prevent and mitigate spam texting.
As to the “scope” of the problem, the CAC looked at consumer complaints about “unwanted text messages” lodged with the FCC and Federal Trade Commission (FTC). The Report finds that such complaints had increased by a factor of 2 to 3 times from 2019 to 2021 (e.g., FTC from 107,673 to 377,840). However, the CAC observes that “number of complaints about unwanted texts are a small fraction of the total number of texts sent.” Based on the volume of text messages, “this data suggests that consumers submitted one complaint for every nearly 80 million text messages,” which is still “far lower than the volume of complaints about other platforms like robocalls.” However, while “[e]nforcement of existing laws and implementation of industry best practices has helped to protect consumers and mitigate the transmittal of unwanted messages,” the CAC concludes that the FCC and wireless service providers “continue to receive a significant number of complaints about unwanted texts.”
As to “harms” to consumers, the Report outlines a variety of “tactics used to defraud consumers” that would inflict such damages. The CAC does not quantify what that impact might currently might be. It does, however, address consumer mitigation techniques, such as consumer initiated blocking and, of course, consumer complaint mechanisms. The last would include forwarding unwanted messages to 7726 (SPAM) and fliing complaints with the FCC or FTC.
In the end, the CAC suggests no specific regulatory revisions or initiatives for the FCC to consider. The Report does offer two fundamental and primary recommendations:
First, in general the Report recommends that the FCC “evaluate whether and how to encourage broader adoption of industry best practices among messaging stakeholders.” As for what best practices, the CAC favorably cites the CTIA’s Messaging Principles and Best Practices, including the “strong emphasis on obtaining consent and honoring consumer opt-out requests” contained therein. The Report expressly recommends that the “Commission should consider ways to encourage all industry stakeholders to employ the CTIA’s principles of requiring consent.”
The second recommendation focuses on consumer awareness and education. The Report recommends that “the Commission itself and with government partners, such as the FTC and state attorneys general, as well as other stakeholders, should enhance their efforts to ensure that consumers are aware of unwanted messaging solutions, including network and device-level messaging blocking tools, and how to report unwanted messages through 7726 (SPAM).” The CAC suggests “a coordinated public awareness campaign” that will ensure tailored accessibility of materials to individuals with a variety of disabilities. Accessibility to senior citizens is also important.
A fundamental post-Report question is what does the Report portend for regulatory, including potential enforcement, activity. Will the Report result in action on now permanent Chair Rosenworcel’s October 2021 proposal, or some alternative? At this point, the precise impact of the CAC analysis and assessment of the “State of Text Messaging” on further FCC regulatory actions remains unclear, but it should not be ignored as a potential impetus for action.