WIRELESS INDUSTRY ASKS FOR EXEMPTION FROM SEEKING OPT-IN CONSENT
Wireless carriers urged the FCC to exempt them from the requirement to seek express prior authorization before sending mobile service commercial messages (MSCMs) to their customers, as long as customers weren’t charged for them. “A requirement to seek such ‘opt-in’ consent would raise a serious constitutional issue as to whether such a requirement would be an unlawful restriction on commercial speech,” Verizon Wireless said in comments: “There is no reason to reach that issue because an exemption for wireless carriers to communicate with their own customers is warranted.” Cingular Wireless said the wireless data industry was “in its infancy,” and the Commission should be “especially careful to adopt no rules that would interfere with the relationship between wireless service providers and their customers.” Nextel agreed, but said the FCC shouldn’t exempt small businesses from the prior-express-authorization requirements.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The comments were filed Fri. as part of an FCC proceeding to protect consumers from spam on their mobile phones. The Commission launched the rulemaking this year (CD March 12 p5) in response to the Controlling the Assault of Non-Solicited Pornography & Marketing Act (CAN-SPAM Act) passed by Congress last year. Congress required the Commission to adopt rules implementing the Act before Oct.
The CAN-SPAM Act “clearly contemplates that wireless carriers could be permitted to send messages to their customers with opt-out consent given the relationship between subscribers and carriers,” CTIA said: “Carrier-customer messages simply do not present the same concerns as messages wireless subscribers might otherwise receive from unknown third parties.” But it said the agency should require wireless subscribers to “take affirmative action” to receive MSCMs from non-CMRS (commercial mobile radio service) senders.
CTIA asked the FCC to adopt its tentative conclusion that only certain wireless messages fall within the scope of Sec. 14 of the CAN-SPAM Act. “Congress was clear on the types of wireless messages the Act was intended to address,” it said: “The provisions of Section 14 apply only to commercial e-mail messages that are sent directly to a wireless device using the standard two-part address, [such as] name@wirelesscarrier.net.” It said short messaging service (SMS), short code and other text messages send using other address formats weren’t subject to the Act’s requirements.
CTIA also urged the Commission “not [to] disturb the anti-spam mechanisms currently used by carriers or adopt one particular method for determining whether messages are being sent to wireless devices.” It said there were “many ‘innovative technological solutions to combat spam and to protect consumers.'” It urged the Commission to “allow consumers and providers to choose the option that best satisfies their needs as long as the option allows sender to reasonably determine that the message is being transmitted to a wireless device.” Cingular said the FCC should “place the burden of compliance with the CAN-SPAM Act squarely where it belongs -- with senders of commercial messages to wireless subscribers.”
Nextel said “the simplest and most efficient way” for the FCC to carry out the Act’s MSCM provisions was by “actively pursuing and prosecuting spammers,” and not by “imposing unjustified costs on wireless providers and their subscribers.” It said there should be a list of the domain names that carriers would use exclusively for mobile messaging. It said the FCC should require commercial e-mail senders to consult that list and delete from their mailing lists any electronic addresses that include a wireless domain name. In contrast, it said requirements such as the proposed “challenge-response” blocking mechanism would be “cumbersome and ineffective, and ultimately would harm consumers through increased costs, service delays and threats to their privacy.”
CTIA said the Commission should also “take the unique characteristics of wireless devices into account when determining how senders of MSCMs may comply with the Act’s general requirements for all commercial e-mail.” It said Congress had recognized that “complete compliance with the general requirements of the CAN-SPAM Act may not be feasible” because of the technical characteristics of wireless devices and wireless messaging. It said the Commission must “harmonize both the Act’s general requirements for commercial e-mail and the specific Congressional directive to take the ‘unique technical aspects’ of wireless devices into account.” It said CMRS and other senders that had obtained prior authorization should be able to satisfy the CAN-SPAM requirements through “the use of a working return e-mail address, with fuller descriptions provided at the time of opt-in, subscription and in monthly bills.”
Since under the CAN-SPAM Act, “express prior authorization” means “opt-in,” Verizon Wireless said the Commission should adopt “stringent rules detailing how senders of MSCMs must obtain opt-in consent.” It said the Commission should clarify that MSCM senders weren’t permitted to seek authorization to send MSCMs by generating SMS messages, given that customers often pay on a per-message basis. Nextel said the agency didn’t have to adopt a particular opt-in method or form, and it was “enough that a subscriber manifest an affirmative desire to receive MSCMs from the sender.”
The National Consumer League, Consumer Federation of America and Consumer Action urged the FCC in joint comments to adopt regulations that “bar unsolicited mobile service messages unless consumers have given prior express authorization to receive them.” They said they “strongly disagree” with the FCC’s conclusions that “consumers must take affirmative action to decline receiving mobile service commercial messages in the first instance.” They said Congress intended to provide “greater” protection from commercial e-mail messages to wireless subscribers that other consumers. But it said the FCC’s interpretation would place wireless subscribers in the “same” position as consumers in general, obliging than to opt out if they don’t want to receive such messages: “This defies logic and does not comport with the intent of the statute… If mobile providers wish to send subscribers such messages, the can easily ask for their prior authorization to do so.” They said express prior authorization should be obtained in “writing, signed by the consumer.”
Consumer groups said the definition of mobile service commercial messages should include both text messages directed to wireless devices through the use of the telephone number assigned to them and messages sent through the Internet as e-mails. It said the definition should also include commercial messages that consist of graphics of images, because “these could be used as links to a Website soliciting the recipient’s business.” It said the definition shouldn’t include messages forwarded by recipients from computers to their own mobile devices, but said “the FCC should take care not to open up a huge loophole by exempting all forwarded messages.”