Cybersecurity Policy Report, Robocall Consent Proposals for Wireless Providers Trigger Debate, (Apr 8, 2024)
Organizations Mentioned:ACA International | AT&T Wireless Services, Inc. | Consumer Financial Protection Bureau | National Association of Consumer Advocates | National Consumer Law Center | Public Knowledge | U.S. PIRG | Verizon
By Lynn Stanton
Wireless service providers have urged the FCC not to subject their communications with their subscribers to the restrictions in the Telephone Consumer Protection Act (TCPA) on robocalls and robotexts sent without the consent of the called party, while consumer advocates have argued that there is no reason to exempt calls from wireless service providers from the TCPA’s mandates.
Parties were responding to a further notice of proposed rulemaking (FNPRM) adopted by the FCC earlier this year in CG docket 02-278 that sought comment on whether the TCPA applied to robocalls and robotexts sent by wireless service providers to their own subscribers, whether wireless providers satisfied the TCPA’s consent obligations due to their unique relationship with their subscribers, and whether consumers should have the right to stop such communications by revoking consent (CPR, Feb. 16).
CTIA said the FCC had “recognized and affirmed multiple times over more than 30 years that the TCPA’s statutory framework does not apply to communications made by wireless providers to their subscribers at no charge (the ‘framework’). This commonsense approach directly advances the Commission’s consumer protection and public interest goals. For example, messages sent under the longstanding framework inform subscribers about account security, public safety, usage, billing, payment, and more. They also help subscribers remain connected, underscoring the unique relationship that a wireless service provider has with its subscriber. These messages are important for all wireless consumers, and they carry increased importance for prepaid subscribers, Lifeline and Affordable Connectivity Program (‘ACP’) subscribers, and subscribers who rely on wireless service as their only form of connectivity.”
It cited a recent Morning Consult survey that found “consumers overwhelmingly support receiving these messages” sent under the framework.
CTIA noted that the FCC’s rules “require that certain wireless service providers — specifically, eligible telecommunications carriers (‘ETCs’) and ACP providers — send particular service-related information to their subscribers. … According to the National Lifeline Association, wireless service providers ‘almost always’ send these required messages by text because texting ‘is the most effective way to communicate with wireless Lifeline and ACP subscribers.’”
In addition, CTIA argued that the FCC lacked “statutory authority to apply the TCPA to communications from wireless service providers to their subscribers sent at no charge.” It noted that the FCC determined in 1992 that Congress did not intend to prohibit or impede such communications, and that “Congress has amended the TCPA multiple times since the Commission recognized the framework in 1992 but has never amended or otherwise altered the TCPA’s structure for communications from wireless providers to their subscribers, demonstrating its intent to leave the framework in place and undisturbed.”
The Competitive Carriers Association, whose members are wireless carriers, said that “the Commission’s recent questions targeted at automated communications from wireless providers to their subscribers are misguided and will not benefit wireless consumers.”
In separate comments, Verizon and AT&T Services, Inc., agreed that the exemption for calls from wireless carriers to their subscribers should remain in place.
The National Lifeline Association (NaLA), which represents providers of Lifeline and ACP service, said the FCC should clarify that the provider-customer relationship “makes it unnecessary for wireless providers to obtain any additional consent before sending informational robocalls or robotexts to their own subscribers. These conclusions will ensure that wireless providers can continue to communicate and share critical information with their subscribers without fear of interruption.”
NaLA emphasized the importance of wireless providers being able to communicate with their ACP and Lifeline subscribers “to ensure they receive the communications necessary to preserve their service.”
NaLA added, “the Commission should conclude that a subscriber’s right to revoke consent for communications from their wireless provider does not extend to informational messages meant to satisfy Lifeline or ACP rules or the goals of these programs.”
NCTA said, “As voice providers, NCTA’s cable operator members know well that illegal and unwanted robocalls not only cause annoyance but can harm consumers and undermine trust in the voice ecosystem. The cable industry has invested substantial time and resources into developing and implementing call blocking solutions and strongly supports the Commission’s efforts to give consumers greater control over the calls they receive. However, NCLC’s [the National Consumer Law Center’s] proposal to mandate a specific, automated opt-out mechanism for prerecorded informational calls made with prior express consent would do little to further aid consumers and would instead impose unnecessary and costly burdens on legitimate callers.”
Informational calls made by its own members to subscribers “are not telemarketing calls, which consumers may consider a nuisance, and they are a far cry from the sorts of illegal and harmful robocalls that NCTA members and the Commission have made significant efforts to combat. Indeed, as the Commission has rightly determined, informational commercial calls ‘do not tread heavily upon privacy concerns.’ The flexibility granted to callers placing prerecorded informational calls with prior express consent reflects these lesser privacy concerns and the value of these calls for consumers,” NCTA added.
In joint comments, the National Consumer Law Center on behalf of its low-income clients, the Electronic Privacy Information Center, the National Association of Consumer Advocates, Public Knowledge, and U.S. PIRG urged the FCC to eliminate the exemption for wireless service providers’ automated calls and texts to subscribers. “The statutory language in the TCPA does not include any language to justify a special exemption for wireless providers,” they said. “Simply because the Commission issued an order in October 1992 that allowed this exemption does not in itself justify the continuation of that exemption.”
They also pointed to lawmakers’ failure to codify this exemption in the wake of the FCC’s 1992 action. Instead, Congress “limited the Commission’s exemption authority to calls that are not charged to the called party and required any such exemption to be ‘subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights [the TCPA] is intended to protect,’” giving the FCC authority to exempt calls from wireless providers to subscribers but no mandate to do so, they said.
The joint public interest comments cited “substantial policy reasons” to require wireless providers to comply with the TCPA consent and revocation of consent requirements, including the fact that other utilities are subject to the consent requirements, that “wireless providers need to be accountable for their unwanted calls,” and that exempting telemarketing calls “would be illegal.” They said that “all prerecorded calls should include an automated opt-out mechanism.”
ACA International, which represents credit grantors, third-party collection agencies, and other companies that use robocalls, opposed the revocation of consent rules adopted in an order accompanying the FNPRM. At a minimum, it asked the FCC to modify its requirement for return texts acknowledging the revocation of consent within five minutes to allow for the hours during which the Consumer Financial Protection Bureau does not allow debt collectors to communicate with consumers.
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